a good friend of mine wanted me to make sure i said that tonight. i got it out there. >> it's always good fun to have you, jesse. audience, thank you. >> thank you. i appreciate it, piers. we begin tonight with breaking news on two fronts. on libya, late word on what american diplomats may have been told about the threat from terrorists just three days before the attack that killed four americans in benghazi. first, though, what could be a campaign blockbuster. what mitt romney said to big money donors about president obama voters when he didn't think the cameras were rolling. a camera rolling and "mother jones" magazine got the video. >> there are 47% of the people who will vote for the president no matter what. all right, there are 47% of them who are with him, who are depend

enon government, who believe that they are victims, who believe the government has to take care of them, who believe that they are entitled to health care, to food, to housing, you name it. that's an entitlement. he starts off with a huge number. these are people who pay no income tax. >> we got these clips from "mother jones" magazine. the romney campaign has not denied the substance of what's in the tapes. in the tape you hear romney saying my job is to not worry about those people, he'd never convince them. he also joked he'd have a better shot if his father, george romney, had been mexican. the question now, does the playing of this tape hurt or help his chances? gop strategist ari fleischer and paul begala and on the phone, cnn's jim acosta. paul, you say this is potentially devastating blow for the romney campaign. why? >> well, because the democrats

are trying to push two narratives. and i help -- as you pointed out, i help the pro obama super pac. and these are the two narratives on romney we're trying to push. first, that he doesn't care about the middle class. well, thanks for the help, mitt. in the latest cnn poll, by the way, before this gaffe, president obama had a 20-point lead over mitt romney in the question of who is more in touch with the concerns of the middle class. so it hurts there, hurts on the second front. there's a tax policy study that the democrats have been pushing, president clinton referred to it in his convention speech in charlotte. and it says in order to give big tax cuts for the rich, mitt romney's going to have to raise taxes on the middle class. well, when you're complaining to wealthy people that 47% of americans don't pay any federal income tax, i think a lot of those people, retirees, working class folks are going to listen to that and think, gee, i guess the democrats are right, i guess he does want to raise taxes on the middle class in order to help the rich. this helps the democrats in two important ways. >> ari, it's not just someone like paul begala who said, this tape could be potentially crippling.

when you have a guy who wants to be president of all of the united states say 40% of the american people view themselves as victims and want handouts. what is that -- how bad is this? >> let's start with the 47% figure, which paul did not dispute. which no one has disputed. it was originally reported by the associated press. it's a fact. 47% of the country no longer pays any income tax. and those are the taxes that provide for food stamps and a whole series of social welfare, for a lot of redistribution of income. >> do they view themselves as victims? >> well, that is a different question. i don't know the answer to that whether they consider themselves a victim or no but what paul very cleverly did was define poverty upward. if we're a nation where 47% of the country is considered in poverty and should not pay any taxes, income taxes, boy, are we in big trouble. middle class people should be paying income taxes. and that's why it's a difference. the best way to hurt programs that help people who need it and who are low income is for these

programs to grow like mushrooms to attract such a great proportion of the country that people start to say, the system is rigged, we have so few people paying income taxes anymore, it's not fair to anybody. and that's what undermines support for social programs that we do need in this country. so 47% is an accurate number and it's a very problematic number. because if you're not paying income taxes and getting benefits, you're getting government for free. >> but ari, does it make -- do you not worry that it sounds like mitt romney is dismissing 47% of the population as people he doesn't need to care about, as people who wants handouts, as people who view themselves as victims and are just sitting around? >> i think what mitt romney is saying, there's a better way. and the way is to more private sector initiatives and not government dependence. the democrats are offering government dependence, which we know grows over time, tries to attract more people on to it,

and that's why the social safety net has become a trap for too many. the other alternative is private sector growth to get the government to create an environment for private sector jobs to grow. the word victim, i would not have used that word. he's right on the 47%. to say they're victims, you know, they think of themselves as victims, some might, some might not. many people are there, some people are there because of circumstances beyond their control. but the point remains that 47% of this country -- and that's a figure that was in the 30s when bush was president, it's grown dramatically since president obama came into office, do get government for free. that's a problem. >> paul? >> the last point is completely wrong. first of all, i salute ari, he's embracing this, it's not a gaffe. what mitt romney said is what republicans really believe. but those people are not getting government for free, ari. they paid into the government. first off, roughly half of the people -- >> they're not paying any taxes. >> i didn't interrupt you. roughly half of the people who are in that class are retirees, they've already paid in, and we don't as a general rule for middle income and below, we don't tax their social security benefits, nor do democrats believe we should. others are working folks who are trying to bring themselves up out of poverty.

this is the distinction. republicans think that retirees and middle class people and working class people and poor people should pay more in income taxes. i'll point out that millions of those people who pay no federal income tax pay payroll taxes which can top out for them, get this, i checked this out, at 15.3%, which is a higher percentage of their income going to washington than mitt romney himself pays on the $20 million on the one year of tax returns that he released. this is the divide here. president obama's campaigning saying i want to cut taxes for the middle class and raise them on the romney class. and now governor romney and ari and other republicans are being candid and i salute them for that. they want to cut taxes on the rich and raise them on retirees and working people and poor people and that's the issue we should take to the voters. >> it's interesting. when then candidate obama was, you know, recorded talking to donors, talking about how there's people that are clinging to their gods and guns. that's something that congressman ryan is still using right now out on the campaign trail. do you see this tape, though --

even from a public relations standpoint when you're trying to get as many voters as possible, is this a wise thing to have been recorded saying? >> well, anderson, whether it was a wise thing to be recorded, or not, it doesn't change the economic facts and statistics before us about how this country has created a tax code for half the people in the country no longer pay. almost half, any income taxes at all. >> you're focusing on that one sentence, on the income tax. >> because it's crucial, anderson. >> he's talking about victims -- his portrayal of 47% of the population as viewing themselves as victims. i think if i was one of those 47%, that might cause resentment. >> i already said to you i don't think that's a word i would have used. i already conceded that point. but back to the point that paul is making. you know, in obama care, they define people who would be eligible to receive a government subsidy on obama care as people who make four times the poverty level for a family of four. that's in the $90,000 range. this is what happens if democrats keep creating these entitlements, these subsidies,

providing them increasingly upward in the income scale in the case of obama care to the $90,000 range and trying to hook people on government programs. this is a crucial divide in the country. >> when he says it's not his job to worry about them, do you think he's saying that because their votes -- >> did he say to worry about getting their vote? to worry about getting their vote or worry about them? >> i think he said to worry about them, but i assume he meant to get their vote because they're not going to vote for him. i don't have the words in front of me. >> i do think -- >> okay. to get their vote. >> i am as anti-romney as you can be. i don't think he was saying he didn't care about those human beings, i think he was saying he doesn't think he can get their vote. here's what he said -- >> let's play that part right here. >> i mean that's what they sell every four years. and so my job is not to worry about those people. i'll never convince them that they should take personal responsibility and care for their lives. what i have to do is convince 5% to 10% in the center.

that are independents, that are thoughtful, that look at voting one way or the other, depending upon, in some cases, emotion, whether they like the guy or not. >> he was talking clearly about their votes. but what he's saying is i'll never convince them, they should take personal responsibility. so he's saying 47% of the country don't take personal responsibility. >> and that's what's so insulting, that shows that contempt he has. that sentence, i'll never convince them. they should take personal responsibility and care for their lives. he's talking about people on social security. by the way, he's leading among people over the age of 65. he's actually wrong as a political analyst but he's really wrong as a national leader. if you're on social security or medicare or earned veteran benefits or the g.i. bill, or a special needs child that needs medicaid, he says you're not taking personal responsibility. that is so offensive. and it does shine a light on the sort of arrogant elitism that clearly animates governor romney and his views toward fellow americans. >> i think that's an unfair leap

to a conclusion. because he can also mean taking personal responsibility in the sense they don't have to pay any income taxes to support medicaid 'they don't have to pay taxes that support welfare. >> he's talking about them being dependent on government here, ari. that's what he means, medicare, medicaid, social security, veterans. >> not talking about the way people live their lives, necessarily. whether you know it or i know it, you'll take the worse interpretation of it and i'll take the better -- take the better interpretation of it. >> i just gave him the better interpretation in the previous sentence. >> if you don't pay any income taxes, you are taking no responsibility for the payments that go out from the government to support the income tax based programs such as medicaid and welfare and food stamps and the like. you don't have responsibility for the payments in to them. you're getting them for free. that's a crucial debate to have. because the more people that get dependent on government programs without paying, they do have a permanent constituency in a big government. >> i want to just for fairness read the statement that the romney campaign has released in the wake of the videos. it says mitt romney wants to help all americans struggling in the obama economy. as the governor has made clear all year, he's concerned about the growing number of people who are dependent on the federal government. including the number of people

who are on food stamps, nearly one in six americans in poverty. and the 23 million americans who are struggling to find work. mitt romney's plan creates 12 million new jobs in four years, grows the economy and moves the americans off government dependency and into jobs. jim acosta, who's following the romney campaign also joins us. do they see this video as a real problem? >> well, if they do, anderson, they're not saying that right now. i think the subject for the statement that you just read could be no apologies because mitt romney is not backing away from this statement he made in that fundraiser video. and as you see in the statement released by his campaign, he is basically saying that he believes the dependency on the federal government is a problem. the one thing you don't see in that statement, he doesn't really talk about that other video that's causing some controversy that shows mitt romney saying he wishes he were elected -- that that would help his political prospects. i reached out to the romney campaign to see if they had a statement on that. they did not respond to my

e-mail. at the same time, we should point out interesting to note that the romney campaign is saying that starting tomorrow, they're going to allow reporters to bring video cameras into some of these fundraisers at private homes, but places like hotels and that sort of thing. to record some of what romney is saying. no word as to whether or not this is a reaction to what these tapes have shown. but for the last several months, ever since the primaries wrapped up, anderson, this has been a problem for mitt romney. he has these unscripted moments that throw him off message. and even people inside his campaign acknowledge. >> jim acosta, appreciate it, guys, appreciate it, as well. let us know what you think on facebook. let us know on twitter right now. i've already tweeted about this. let me know what you think, @andersoncooper. let me know what you think about these tapes. does it make a difference? does it change anything? up next, we have more breaking news tonight. exclusive reporting from inside libya, from benghazi about a warning u.s. diplomats may have received just three days before those deadly attacks. ♪

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more breaking news now. the attack in benghazi that killed four americans, including the u.s. ambassador christopher stevens might have been -- excuse me, might not have been preventable, but it should have been foreseeable. according to our reporting. our reporting from inside libya seems to indicate that libyan officials believe that the threat was growing and they warned american diplomats about it. this is new video, the commotion outside the benghazi consulate where friendly libyans discovered a badly wounded ambassador stevens in a room inside. there are frames not showing of the ambassador still apparently breathing being taken from the scene to the hospital.

clearly it was a tragedy, but was it a foreseeable and therefore possibly preventable one? so far the government's line is that the benghazi murders were probably spontaneous and not premeditated reaction to the anti-muslim video on youtube. >> it's important to know there's an fbi investigation that has begun and will take some time to be completed. that will tell us with certainty what transpired. but our current best assessment based on the information we have at present is, in fact, what this began as was a spontaneous, not a premeditated response to what had transpired in cairo. in cairo, as you know, a few hours earlier, there was a violent protest that was undertaken in reaction to this very offensive video that was disseminated. >> that was u.n. ambassador susan rice yesterday morning. now, many have a hard time believing that, including republican senator lindsey graham who's calling for a congressional investigation. his colleague, john mccain also

believes the assault was pre-planned. >> why do you think they're calling it a spontaneous attack? >> i have no clue. the facts -- the facts are so clear that heavy weapons and rocket propelled grenades, indirect fire and direct fire very excellent military tactics were used. it could not be spontaneous. >> with that kind of pushback, the state department seems to be trying to soften ambassador rice's statement. listen. >> we've heard a number of different things from libya. i would simply say that what the comments that ambassador rice made accurately reflect our government's initial assessment. >> initial assessment. that was earlier today. this evening, we reached out again to the state department but we have yet to receive a reply. now, again, the breaking news tonight, new reporting from libya that lays out precisely what americans there were told about potentially deadly threats and how they knew it. in a moment we'll talk to the former cia officer and fran

townsend who has new information of her own, who was in libya, met with the ambassador and has fascinating information about what kind of security detail he had or lack thereof, which might indicate one of the reasons he was so vulnerable in benghazi. but first, cnn's arwa damon in benghazi who broke the story. arwa, you've been talking to eyewitnesss on the ground there. i understand one eyewitness heard an extremist talking about hitting a second location. is that true? have you heard that? what does that tell you? >> reporter: first of all, we do know that a second location was attack. that second location was supposed to be the safe house where embassy personnel were evacuated to. this other eyewitness, a young man, arrived on the scene saying he saw at least two dozen bearded men, part of a known extremist militia here, he said just on the outskirts, just outside the consulate compound. they briefly detained him because he said he did not share the same ideology.

and during the few hours he was in detention, he says he heard them talking about the attack on the compound, celebrating it and talking about needing to get ready to go out and attack a second compound. all of this, of course, raising the question as to whether or not this was a pre-planned assault as some members, senior members of the libyan government are claiming or whether or not it was quite simply a demonstration that turned violent. >> arwa, you're hearing that the u.s. should've known about this, that they were warned in advance? >> libyan officials are telling us that they were talking to the u.s., telling them, warning them about the growing extremist threat and flat out admitting that they could not control these extremist militias, actually asking the americans for help in doing that. and i spoke to some military officials who say that just three days before the attacks took place, they had a meeting with senior employees from the consulate itself where they were talking about this rising threat against western interests.

and again, highlighting the point that they themselves could not control these militias, these gangs that roam with pretty much pure impunity. and the ambassador himself was aware of the growing security threat, as well, anderson. >> and yet, his own security detail seemed very small, no? >> reporter: the front line of the compound, if you will, was libyan guards, but they don't have weapons, they only have walkee talkees. there are some armed individuals inside, westerners we are being told. of course, the u.s. not disclosing that kind of information. but it most certainly is not the kind of security measures that one would imagine would be put into place in a country where the u.s. is well aware and itself monitoring al qaeda affiliated extremist camps in the desert not too far from the city of benghazi itself. >> and let me be clear about it. you're saying that libyan officials had meetings with u.s. officials inside libya warning of potential threats? >> reporter: libyan officials in

benghazi, military officials that are members of one of the more powerful brigades and battalions met with officials from the u.s. consulate in benghazi three days before the attack took place they're telling us. this was a meeting that was supposed to be centering around business and the economy. but they are saying that they told the americans, wait, we can't even be talking about the economy, about bringing western companies in to libya, especially into benghazi because this threat from extremist militias is growing. we at this point in time do not have the capabilities to be able to control them or to protect western interests. and they were asking as they have been for months, anderson, the americans for help in controlling these extremist elements because they know what the consequences are going to be if they become even more powerful than they already are. >> arwa damon, thanks. appreciate it. she pointed out we've reached out to the state

department for any kind of confirmation about what they may have been told or conversations they may have had with security officials in benghazi about the security situation three days prior to the attack. let's dig deeper now with two cnn contributors, former cia officer bob bair who has a long history in the region. also fran townsend, also a member of the cia's external advisory committee and last month was in libya with her employer mcandrews and forbes. what do you make of what arwa was reporting based on what she was told by libyan officials on the ground? >> i think it's completely plausible that the compound had been attacked in june. the british ambassador had been attacked, icrc had been attacked twice. it was clear there's a running threat in libya. and, you know, frankly, anderson, this compound was underprotected in that sort of situation. i've served in places like this. and, you know, there was watchtowers, sandbags, machine guns, and a safe room is really truly a safe room. and if this was just a residential compound, it was

underprotected. >> fran townsend, what do you make of it? it sounds like if they were warned three days before, that's pretty damning, no? >> it is, anderson. and there's a couple of points to be made here. first of all, who did they speak to at the consulate? and what did those u.s. consulate employees do with that information? did they pass it on? did it get to the regional security officer who would have been in position to give additional resources and protection to both the compound and to the ambassador? second, anderson, as you recall, i was there in libya in tripoli august 28th and 29th. i had breakfast with ambassador chris stevens on august 29th and talked to him about my own observations about the increased presence of militias. the increased concerns of everyone i had spoken to about the extremist presence in the east of libya. i know that ambassador stevens was generally aware of those concerns, the extremist presence in the east of libya, but the real question now, based on

arwa's report, was the information from the libyan officials in benghazi and their need for assistance passed on to ambassador stevens before he traveled there? >> fran, what was his security detail like? and i'm not sure you can comment on that. but i remember when i was going with ambassador paul bremer in the earl did i days of iraq, he had a huge security detail with him, blackwater folks. did the ambassador have that? >> anderson, it's funny you should ask me this, what was striking to me and i commented to him when he arrived. he arrived in an armored car and obviously with a driver. i didn't -- his security did not come in to the hotel with him to meet me. he had no visible security presence when he met me in tripoli. he walked in, he was greeted by other libyans who clearly recognized him at the corinthia hotel and came up to him very warmly and thanked him for his u.s. assistance. but he had no visible security presence with him when he walked in.

>> bob baer, does that surprise you? >> absolutely. there's no way that man should have been without security, without western security. there is no libyan security to provide it and he should've had it. there were so many attacks, so many threats hanging over libya. frankly, there's no excuse for it. >> people say, though, about him, he was a guy that liked to roll up his sleeves, like to be out on the street and that's how he did effective work. >> you know, everybody wants -- he's good, he knows the middle east, he's an arabist, he did the same thing at damascus, and that's what the state department should be doing. the problem is the middle east is changing so fast that that way of behaving -- not the way of carrying yourself out in public, you just no longer is safe. >> fran, to your point, we haven't gotten confirmation from the state department about any meeting that was held three days before or to what degree or to whom any warnings were made. it's very possible these are now libyan officials telling arwa damon, who are now covering their tracks or saying in retrospect or, you know, kind of making more out of whatever

warnings they gave. >> absolutely, anderson. and this should all come out. both senators collins and liberman have called for the state department i.g. to conduct an investigation, and we know the fbi is conducting an investigation. whether or not this is true, these individuals, these libyan officials who claim to have passed this information will be interviewed and ought to be name the individuals they passed the information to so they too can be interviewed. but to bob baer's point, we absolutely need to understand now what was the security arrangement? what was the people on the ground including the ambassador there understanding of the threat? and what was done about it in advance? >> if there was supposed to be a second hit on a safe house, does that to you indicate some sort of involvement of people who have inside the libyan government who have access to information? >> it certainly raises that question, anderson. who knew that these people were coming? where the second location was,

that there was a convoy on the way there. it certainly sounds from what we know now as though the extremists set up on that location and simply waited for them to arrive and surprised them, ambushed them, if you will. >> bob, is that second hit on that alleged safe house is that to you what's most troubling? >> it troubles me. those places aren't marked. there's a lot of foreigners living in benghazi, and how they knew it was a u.s. government affiliated safe house, they had to have some sort of inside intelligence. i don't see another way out of it. >> troubling. bob baer, fran townsend, thanks. up next, supreme court secrets. the vast divide between president obama and the court. the legendary justice who said the republican party is destroying the country. jeff toobin reveals never before heard details in his new book "the oath." he joins us for his first television interview about the book. and later, cnn's max foster talks to prince william about the controversy surrounding the photos taken of the duchess of cambridge kate middleton. i got a medicare supplement insurance plan.

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here's more brking news. a late update on our lead story. the videotape of mitt romney talking to fund-raisers earlier this year, making unflattering remarks about obama voters. you'll recall mr. romney is heard on the tape saying that nearly half of americans will

vote for president obama because they rely on government support. "mother jones" magazine obtained the tape a short time ago. mr. romney spoke briefly to reporters. he said the tape in question captured moments from a q & a session. he said he was talking about the process of winning votes and said his remarks were intended to highlight the differences between his and president obama's approach to government. >> good evening. i understand that there's a video that's been on the internet for a few weeks that has attracted some attention, and i thought i'd make some comments about it. apparently it's got a snippet of a question-and-answer session at a fund-raiser event. it doesn't capture the question, so i don't know precisely what was asked. whoever has released the

snippets, i would certainly appreciate they release the whole tape so we could see all of it. i believe the point i made, the president starts out with a large number of the voters, 47, 48, 49 percent something like that, these are people who are in his camp, and they'll vote for him almost no matter what. i also have a large number of people who will vote for me no matter what, at least i hope so. my campaign effort is to focus on the people in the middle. the people i will try to draw into my campaign or largely people who voted for barack obama last time around, but who i want to have as part of my campaign to become successful. so it's a question and answer as i recall about the process of the campaign. and how i'm going to get the 51 or 52% i need, and i point out it's by focusing on those folks who are neither in his camp nor in my camp. of course, there's a very different approach to the two different campaigns, as i point out, i recognize

that among those that pay no tax, approximately 47% of americans, i'm not likely to be highly successful with the message of lowering taxes. that's not as attractive to those who don't pay income taxes as it is to those who do. and likewise, those who are reliant on government are not as attracted to my message of slimming down the size of government. so i then focus on those individuals who i believe are most likely to be able to be pulled into my camp and help me win the 51% that i need to become the next president. this is, of course, something i talk about a good deal in rallies and speeches and so forth, which is the president and i have very different approaches to the future of america. and what it takes to ignite our economy and put people back to work. the president believes in what i've described as a government centered society. where government plays a larger and larger role. i believe in a free enterprise, free individual society, where

people pursuing their dreams are able to employ one another, build enterprises, build the strongest economy in the world. i happen to believe that my approach is the approach that will put 23 million people back to work again. we've watched the results of the president's approach over the last three and a half, four years. and his government centric larger and larger government approach has meant that we have 15 million more people on food stamps, 23 million people out of work or stopped looking for work, or under employed. we have had 43 straight months with unemployment above 8%. my view is, the right approach for our nation is not to adopt a government centered approach, but instead a free people -- free enterprise, free market, consumer driven approach. that will build the strongest economy for ourselves and the coming generations. >> those who receive government

benefits and don't pay taxes, saw themselves as victims or they're not willing to take responsibility for their own lives and futures. what did you mean by that? >> you said a number of things there. i'm talking about the political process of drawing people into my campaign. of course, individuals are going to take responsibility for their life. and my campaign is about helping people take more responsibility and becoming employed again. particularly those who don't have work. this whole campaign is focused on getting people jobs again, putting people back to work. this is ultimately a question about direction for the country. where people are able to pursue their dreams? i believe the latter will help people get more jobs. this is a campaign fundamentally

about how to help the middle class in america and bring people out of poverty and into the middle class. we've seen the results of the last three, four years and it has not work. my approach will get 12 million new jobs and rising take-home pay. >> you're not stepping away from anything you said in this video, are you? you're not tacking away from it? and do you worry you offended the 47% who you've mentioned? >> well, it's not elegantly stated, let me put it that way. i'm speaking off the cuff in response to a question. i'm sure i could state it more clearly in a more effective way than i did in a setting like that, and so i'll -- i'm sure i'll point that out as time goes on. we don't even have the question, given the snippet there, nor the full response. i hope the person who has the video would put out the full material. but it's a message, which i'm going to carry and continue to carry. which is, look, the president's approach is attractive to people

who are not paying taxes. because frankly my discussion about lowering taxes isn't as attractive to them. and, therefore, i'm not likely to draw them into my campaign as effectively as those in the middle. this is really a discussion about the political process of winning the election and, of course, i want to help all americans. all americans have a bright and prosperous future. i'm convinced that the president's approach has not done that and will not do that. garrett? >> mitt romney just a few moments ago. joining us now, jim acosta and on the phone, senior political analyst, ron brownstein. great to have you both with us. let me start with you, you've been following this story all evening. clearly, the primary objective for the romney campaign was to get ahead of this story, otherwise he wouldn't have gone in front of the cameras to address the controversy. what's your take. do you think they were able to regain control of this story? >> well, i think it's very interesting they called this news conference roughly 15 to 20 minutes before it even started.

that goes to show you how quickly they felt they needed to get on top of this. the other thing i think is also interesting to note is that during that news conference, you heard mitt romney refer to president obama's, what he called it, government centered approach. he said that repeatedly, and, yes, he does talk about that out on the campaign trail. what this gets to, what this was revealed in some of these hidden camera videos, mitt romney for a while now has been saying something different behind closed doors at these fund-raisers, compared to what he said at public rallies in front of voters, so i think that's why he had to get out in front of the cameras tonight and explain, as you heard in those comments. you don't hear this from presidential candidates. he said what he had to say about some voters out there not being people who are dependent on government assistance, people who might think of themselves as victims. he said that was not elegantly stated and that he wished he

could go back and state that more clearly. and i think something that's also extraordinary, he called for the people who leaked this video to put out the entire videotape. that is something you don't hear often from presidential candidates. this was a very important night for the romney campaign. this is one of those nights that i think a lot of people will look back on this campaign and say, that may have been a pivotal moment as we get closer to this election, isha. >> this could be a night that people look at as pivotal, a night when this campaign turned. what is your take on these comments made by governor romney, how damaging are they especially to those undecided voters? >> they're very strange. not only as political strategy but even as political analysis. as you look at the original comments, he seems to be toggling between two different concepts. both of which have been touted by conservatives. one is that either 47% in the 2009 estimate or the current

estimate of 51% of americans don't pay federal income taxes. of course, the vast majority of those people pay other federal taxes, in particular the payroll tax which goes to fund social security and medicare. many of the people who don't pay federal income taxes would be lower middle class workers. the white portion of which are actually pretty republican in their voting tendency. the other concept he eludes to in the original statement is even more striking. he's suggesting that almost half of the public is dependent on government benefits. that's drawing on a census bureau calculation. that roughly 45% of americans live in a household that receive some government benefits. really the punch line there is that the number of -- the number of households that receive social security or medicare, either one, is larger than the total number of households that receive any means tested entitlements for the poor. and once again, white seniors in particular are voting republican in the last several elections.

in essence, he is insulting voters that he is relying on in this election quite heavily. it's a very odd statement in a lot of different ways, it does reflect a kind of line of argument on conservatives, which he's touched on in his public comments as well. >> and ron, it's also odd, because this all came out on a day when the romney campaign was recalibrating its message. >> right, absolutely. talking about more of a base-oriented strategy, like i said, as political -- even as political analysis. this is kind of a problematic line of argument, but it does kind of go in one sense and the fact that he did not back off of it, does point in the direction that you were talking about. there is an ideological argument that many conservatives want to make and that romney will appeal to by sticking with these comments. suggesting that we are in essence -- president obama is

taking us on a sleigh ride to sweden, we're becoming a coddled, soft entitlement state. he made comments like that very similar to that during the primary, there was the famous interview on "starting point with soledad o'brien," where he said he's not worried about the poor, he's worried about people in the middle. there is an ideological argument here that some on the right want to have. >> i hate to jump in on you. we have to leave it there. i'm sorry. great to get your perspective. thanks to you both. we'll be right back. hurry, offer ends soon. book now at travelocity. like in a special ops mission? you'd spot movement, gather intelligence with minimal collateral damage. but rather than neutralizing enemies in their sleep, you'd be targeting stocks to trade. well, that's what trade architect's heat maps do.

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as we've been reporting throughout the campaign season, the economy obviously is issue number one. the key element voters will weigh when deciding whether or not to give president obama four more years. what often gets lost in election year chatter, though, is the supreme court and how the vote winner in november is going toe influence it, the court. in his new book "the oath," jeffrey toobin argues there's an ideological battle between the president and chief justice john roberts. jeff is our senior legal analyst. this is his first tv interview he's given on the book and we're thrilled about that. congratulations on the book. >> thank you. i am thrilled to be here and thrilled to have it done. >> your past books on the court have been incredible. >> well, thank you. >> this relationship between president obama and john roberts is really fascinating. it got off to that kind of odd start with the oath that was administered where he sort of botched it. and we're going to put up on the screen the script for the oath of office that the justice was supposed to administer.

>> this is such a weird story. i always wondered why did they mess it up? why did it happen? and what happened was john roberts prepared this document. this document has never been seen in public before. and this is a document where he sketched out exactly how he was going to do the oath with the spaces indicated. and you can see, i barack obama do solemnly swear. his assistant sent it to a secretary in the joint inaugural committee, congress' committee. that secretary never opened it. >> hmm. >> never looked at it, never forwarded it to obama's office. so obama never saw this document before inauguration day. so he didn't know how roberts was dividing the words. when you listen to it, as i have listened to it now 300 or 400 times, you see -- >> i barack obama do solemnly swear. >> that i will execute the office of --

>> see what happened there, was obama interrupted roberts. and roberts very uncharacteristically sort of panicked and got the words all wrong. but the reason was obama didn't have that document and didn't know. a lot of people thought at the time that roberts sort of blew it off, he didn't practice. he practiced so much that his wife said to him, you know, at this point the dog thinks he's president. it wasn't a lack of practice, it was just, they were on different pages. >> it's interesting because you write in the book that he was a skilled and powerful advocate for the republican agenda, roberts, and yet it was roberts who came to obama's rescue on the health care? >> well, this was just an extraordinary thing. and cnn viewers who are smart people may well remember that i was quite wrong in my prediction of this. so i don't want to pretend that i saw this coming. in retrospect as i was doing the reporting for the oath, i saw

that roberts saw real peril to the future of the court if bush v. gore 2000, citizens united 2010, health care two years later. if those three cases all were five republicans overruling the work of democrats, roberts really feared for the future of the court as an independent respected entity. so in part because he was obviously persuaded by this strange argument that said this was part of the taxing power, but he also felt he was protecting the integrity of the court as an independent, respected body to, you know, not be simply a partisan rubber stamp. >> there's also a fascinating story about sandra day o'connor who is a republican appointee, saying, when justice souter was retiring, it's my party that's destroying the country. >> the last three justices to leave the court, john paul

stevens, all republican appointees who left deeply alienated from that party. and that scene in the supreme court corridors, the justices, they respect each other's space a lot. they don't go into each other's offices a lot, but they have a lot of conversations in the corridors. >> it's like "60 minutes." >> it's a little like "60 minutes." in these beautiful, big corridors. and o'connor went on and on to suter about how it was the republicans running up deficits and barry goldwater never cared who you slept with. and we didn't get involved in these foreign adventures, you know, under good republican presidents. o'connor, stevens, and suter all left completely alienated from the modern republican party and they were replaced by modern republicans who are much more conservative. >> the book's "the oath" and congratulations. >> thanks. >> look forward to talking more about it down the road. a royal legal battle over topless photos of kate middleton. that's next. first it was a french magazine, now an italian magazine published the photos. we spoke with william and kate today. you'll hear what they have to say about the scandal next.

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prince william and his wife kate are touring southern -- the south pacific. max foster caught up with william and kate today. you spoke with the duke and duchess today, what did they say? >> reporter: it's the impression really of upset and anger. i mean, she feels humiliated by these pictures. he feels angry.

what you have here is a situation where william's reminded of his youth. so his mother was absolutely hounded by the press. the paparazzi in particular, right up until the moment she died. he's worried that's going to start happening to the duchess now. his wife, and he's protective of her. he's really tried to draw a line here, to say to the paparazzi, to say what is acceptable and what isn't acceptable. there is a bit of a debate around whether they could run these harry pictures, the picture from las vegas. but for him, this is completely different. this is unacceptable. it's an invasion of privacy, and he's using whatever in his power in terms of legal weapons against this magazine in france. >> the italian magazine, which is owned by the same company that published the photos in the french magazine. they published 26 more pages of william and kate on vacation.

the royal family filed complaints with the french prosecutors not the italians. why? >> reporter: in france there are strict privacy laws. they have a better case of winning in france. that's one thing. the french magazine has been syndicating these pictures elsewhere. and the injunction they're trying to achieve in france will close that down. they won't get to resell anything. they want the courts to have the original digital copies of the photographs. today the editor of the irish newspaper has been suspended. there's been some progress ppt italian paper, they're not planning to hold any legal proceedings in italy at this point or in other countries, in fact, they are considering it. what they are really doing is making an example of the french newspaper and hoping the editors around the world will use their better judgment and not publish these pictures. >> max foster, appreciate it, max. thank you. we'll be right back. [ female announcer ] roam like the gnome this fall.

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