>> how do we give $1.5 billion to that. >>. >> maybe the president thinks that's his only leverage now. >> and he's trying to get the female base in the country. greta is next. see you. >> tonight, we take you to the hottest feud. president obama has been a little fuzzy on his constitutional law, despite teaching it at a fancy law school. now the attorney general is embearings the president, taking him to task for it. now you will hear both some from his classroom and some in the courtroom. former u.s. attorney general alberto gonzalez and dick morris and we knew it was bad, really bad, but it just got a whole lot worse. first the gsa spent $800,000 plus on a lavish vague gas convention but now gsa workers caught on camera essentially laughing at you for wasting your tax dollars. ♪ the buy every field can

afford, and get the hat award. donate my vacation, love to the nation, i never be under a gsa investigation. >> unbelievable. we will show you more of the disturbing video and it will set your hair on fire. we promise that. it's just minutes away. right now eric holder does as he was told. before the clock struck noon today he responded to the united states court of appeals for the 5th circuit. the attorney general stating what every lawyer and now citizen knows, the power of the courts to review legislation is, quote, beyond dispute. shannon is here. boy, he responded on time >> de. he made the deadline. we literally were following this online with the automated electronic court filing system. i think it was about 12:58 it went live. >> now, the interesting thing is that this document is two and a half pages, but as you and i were talking before the show started, the court actually asked for something different. >> it did. it said no less than three pages, single-spaced.

they didn't specify font size or margins or anything else. the judge, if he wants to quibble, didn't get a full three pages, more like two and a half pages. >> i actually thought the judge made a mistake -- or whoever wrote this, not to be no less than three pages because i suppose if i were a real smart-aleck attorney general i probably would have dumped about 2700 pages like the healthcare bill of constitutional law just to be obnoxious. >> but when we listen to the audio of the arguments the other day and the judge laid out the homework assignment, he said no less than three pages. it was clear he was looking for something very specific and wanted them no not just quote marbury versus madison. he said in the filing i need to you specifically address the president's remarks p and if you will notice, if you read the letter, the only time that is mentioned the final line where it says the president's comments are all in line with the legal theories we've laid out here. >> so defending his boss. >> he is. he has to do it.

>> in fairness, the attorney general got dragged into this, what provoke this there was an argument before the court, unrelated case, a department of justice lawyer, the lawyer was asked this same question in court. so of broadsided and she said marbury versus madison so the judge had his answer. he didn't have to go to this. >> right. >> so this shows what the president said the other day got under the judge's skin and he fired back. >> it did and he referenced that. it wasn't just pull out of thin air. he did say we are concern about things the president has said the last few days. we want to make sure he agrees with us on judicial review and the courts have the right to look at laws passed by congress and we have the authority to strike them down. it was a very specific, you know, reference right to the president. >> as you notice, the attorney general said at the end of the -- the president's remarks were fully consistent with the principles described herein. he's covering for the president. i think most people conclude the president was dead wrong with what he said on monday. president then tried to get it

down but he was wrong and the attorney general is being a dedicated employee and giving him cover. >> he is. i talk to people who support the law, those who don't, and they all said this was the only answer the attorney general could give is lay out the case law that everyone know is accurate and factual. it starts out in the letter, yes, we are going away from the principle the court has the right to do to, to look at the laws and assess their constitutionality. but the rest of theler they went on to reargue what we heard of supreme core the last week about the customers clause and sort of rearguing the case. >> i think he had to fill up with something to fill up the two and a half pages. he couldn't make the three enerved to. is there any word on whether the court is satisfied? >> i don't know. i got a no comment from the judge's chambers. only thing left in the case is going to be the opinion. we wait to see if judge smith will include any of what is in thisler in his opinion or if he says we are satisfied, we move on, get ruling and most

certainly it will appealed to the supreme court if it doesn't go in favor of you guys. >> the legal thing is sort of sorted out. we have dick morris to figure out if there is a political sting to this one. thank you. >> good to see you. >> lamar smith accusing president obama of threatening and trying to intimidate the supreme court. congressman smith is chair of the judiciary committee. he joined us. good to be with you, sir. >> thank you. >> do you believe the president was trying to threaten the supreme court or do you think he was in my words acting a little dopey and not thinking through and apparently a little confused about marbury versus madison? >> i think the president knew what he was trying to do. he accused the supreme court of being unprecedented if they overturn part of the healthcare bill. he called them an unelected group of people. he was clearly trying to chip away at their authority and really credibility to overrule a federal law. what he was trying to intimidate or not, that sure is the way that it came across. that is just not appropriate.

he needs to show more respect to the supreme court. you know, he was disrespectful of them over a year ago in his 2010 state of the union address. they were sitting down in front of him. he insulted them then. i think it's going to backfire. it isn't going to work. he shouldn't be trying to intimidate the supreme court. it might backfire. >> you know, i was thinking, as i heard it, what is the supreme court thinking? i thought here are nine justice whose have a lifetime appointment. there is nothing the president can do to them. his job is up for review in november. there's nothing they can do that i would think they were thinking is he out of his mind to think he can influence us with whatever he says, that maybe he thinks he can somehow dazzle or threaten or insult? i would have thought that they would have thought that he was, to use my words, a bit dopey. >> you are absolutely right. in that case i don't know what he was thinking because clearly he was smart enough to know, a former constitutional law professor in chicago, he knew it was not unprecedented for the

supreme court to overturn this law or any other law. the supreme court overturns a couple of cases every year. that's very common for them to do. and in this case, what's unprecedented, of course, is the mandate in the healthcare bill that forces every american to purchase a specific type of healthcare policy. we've never seen that before in this country. so the president was unprecedented in what he said. i think the supreme court is really not going to pay much attention 20 what -- to what he. >> he is probably trying to send a message to the american people. he said that a strong majority of democratically elected in congress, but a strong majority passed it. that's false. it was not a strong majority. it was right down to the wire. it was a very close vote. to say it was a strong majority, it's untrue, it's false. >> almost everything the president said about it was not accurate. in this case it was not a strong majority. in the house the vote was 219 by 212. by no definition is that a strong majority.

poll last month, the most recent poll, the majority of the american people, 56%, want to repeal the healthcare bill. i don't know where he's getting the strong majority. maybe the same place he said it was unprecedented. i don't know. >> he did do something the next take i thought was more disturbing. the mistake he made on monday was obvious. everybody jumps and that's a clean, yobs one. but on day two, what he argued was that the ends justified the means the fact that he thought it was an important bill where people could stay on their parents' healthcare, that that was a reason to sort of by pass a constitutional analysis of the man date. does the end somehow justify the means? now i actually think that was a more poisonous statement to make because this is -- the announcement the court is to make is not whether they think in the end this is a good idea, it's whether the mandate is constitutional or not, period. >> the president has seemed to have forgotten the judicial branch is a coequal bran of government. here he was trying to diminish one of those coequal branches of

government f he wants to change the constitution, there's a process for that but he can't do it all by himself. he can't suddenly decide the judicial branch is somehow unable to declare a federal law unconstitutional. i think the supreme court will have the last word on this. whether he grease with it or not, we need to respect what they come up with. >> i'm curious whether in the opinion by the supreme court he's jabbed on his constitution until analysis. we'll see. thank you, sir. >> good to be with you. >> how would you like to be attorney general eric holder tonight? his boss dragged him into a mud fight, rutting in him getting a homework assignment by the deadline. how did he do? judge alberto gonzalez, attorney general under george w. bush, joins us. how are you, sir? >> good evening. >> what do you think? when the attorney general saw this fight going down this week and he got a homework

assignment, you have been in his seat, maybe under different circumstances, but what do you think he thought? >> well, you know, listen, you have an order from the court. you have your obligation to respond to it. and obviously there are other pressing matters for the attorney general of the united states but nonetheless one of his sobs, is to respond to an order from the court and the attorney general did so. >> you are a former judge in texas and as well as a former united states attorney general. i'm curious whether you thought the letter from it was fair play or petty after the justice department clearly answered it before him and it wasn't related to their discussion. let me ask you, the u.s. court of appeals judge, was he being fair? did he not know the answer? did he not know that the justice department or was he being petty? >> listen, i think judge jerry smith is an outstanding justice. he knows the answer to this question. if i were in his shoes, i'm not

sure that i would have done the same as he requested, but i'm not going to second guess the justice here. you know this, is a very important issue. obviously the statements made by president obama created great deal of controversy, and he quickly back pedaled from those comments and the department of justice has made it clear that this administration understands that, of course, it is within that constitutional responsibility of the courts to determine the constitutionality of any law passed. >> let me focus on where he said this is a great bill, foreign, kids can stay on their parents' healthcare longer. and basically saying this should be constitutional because it's a good product. he didn't address the fact whether the mandate was constitutional or not. do you agree with me that that is sort of a more poisonous discussion because it is a little bit less obvious as to being sort of a departure when we do a constitutional analysis?

>> i don't think the court should take that into consideration, quite frankly. the question is whether or not does the constitutional allow the congress and this administration to impose this kind of man date. i'm of the mind this is going to be a very close question for the court. i think the court is going to struggle with this question. they are also going to struggle with the question if in fact the mandate is deemed unconstitutional, they will struggle with the question of severe ability. i want to get back to a point you made earlier in talking to congressman smith about intimidation of the court. the truth of the matter, and i think you are absolutely right, i can't imagine justices who have life tenure are going to be in tim natured by the statement of the fred who may be out of a job in eight or nine months. so for that reason president obama is very bright. i don't think tis message was for the court, i think it was the american people. there may be concern about maybe the court may not go his way, and rather than accept responsibility for misjudging the constitution, you know, perhaps they are looking for a

way to blame the court as doing something that the court shouldn't be doing. so i think i disagree with those who believe the president was trying to intimidate the court. i don't think the court is going to be intimidated by the president on this issue. they have read thousands of pages of briefs. they have heard hours of argument, and that's the basis on which they will make this decision. >> we only have 30 seconds left. the interesting other aspect is there's no scientific formula for determining the breath of the commerce clause and whether it includes this mandate, is there? in a lot of ways it is sort of subjective by the justices and whoever gets the more votes wins. >> no question about it. you need to watch carefully as to whether or not kennedy's question as to whether or not the market for healthcare is so unique that may be a limiting factor. i think that's something we need to watch carefully. >> judge gonzalez, thanks for joining us. nice seeing you this evening. >> thanks for having me, greta.

>> straight ahead, time. well, it's everything. the explosive power struggle between the president and the courts coming right in the middle of an election day. is this a minor glitch for the president or is this a big stain that voters won't forget come november. dick morris goes on the record. that's next. also embarrassed. that's how one of president obama's former law students feels about the comments about the supreme court. what else is he saying about his former professor? that former law student is here to tell you. plus, do you think it's funny that the gsa wasted $800,000 of your money? well apparently some of the gsa workers do. they are laughing about it on camera. you won't believe it until you see it. but you will. stick around. wake up! that's good morning, veggie style. hmmm. fohalf the calories plus vgie nutrition. could've had a v8.

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themselves are short term spat. but if the supreme court holds the individual mandate to be unconstitutional, i think that will doom whatever is left of obama's re-election chances. there are two schools of thoughts. a couple democrats are saying this will energize the base and they will know we need one more democratic judge. but that's not my opinion. my opinion is in roe v. wade, you need one more democratic or one more republican to write the balance. people aren't going to change their view ever abortion based on a supreme court opinion. but something like this, the question is is it legal, is it constitutional, i think voters will credit what the supreme court says. i think if they throw out the individual mandate the public is going to look at obama and think what the heck did you tie up this country for two years make your signature legislative achievement something that was

unconstitutional and you have already spent hundreds of billions of dollars on it and i think he will have a very hard time living that down. >> you may be right. i sort of had subscribed to the other it might actually energize his base. i hadn't thought of it your way. but getting back to one second for what happened this week. here's what i think about this week. if you think the president made those statements because it was a slip, it was a gaffe, it was a whatever, then i don't think it will haunt him come november. if, however, you think it shows his arrogance, that he thinks his branch of government is more important than the judiciary or he thinks he can tell the court what to do, that feeds into a lots of things people say about him about being arrogant and beyond people's reach and not understanding people's problems. i think if that is what people think it is, it will hurt him in november. if they think it's a gaffe, you know, we all make mistakes. >> i think you are right about that. it's not like he said 57 states or something you can do when you are on the campaign trail and fatigued. he said it was unprecedented for

the court to throw out an act of congress. that's like saying it's unprecedent today breathe. it's what the court does. and then in his follow-up the next day, he cited the larknar case, which is a state case, not a federal case. the customers law was not relevant and it was decided in 1903 and he said it was decided in the 30s. he's a constitutional law professor. he should get an f in his own course. but let me go back to the basic question to the constitutionality. i worked for clinton in '95 and '96 when the o. j. simpson was coming down. right before the verdict the whites overwhelmingly felt he was guilty, blacks overwhelmingly felt he was innocent and president clinton was very worried about a racial backlash when the verdict came down. then when the verdict came down that he was not guilty, we polled that night or the next night, and we found that the whites had come around to agree with the court. they said, okay, he did it, he's

guilty, but they didn't prove it, and they were right to hold him not guilty. the public bows to the courts. it believes in their superior wisdom. and i think if we find out that obama has two initiatives in his administration that defined it, the stimulus package that didn't work, and obamacare that was illegal. what does he have left? >> well, to comment on the o. j. simpson thing, i don't know the results of your polls. although i sort of thought that the day of the verdict that people took sides and that people were unwilling to really look at the evidence. unfortunately people, not to divert too far, people in the o. j. simpson case on television, they saw a very different trial than the people you'll actually in the courtroom and the people weighing the evidence. it did start a big fight. >> the polling showed that people went along with the verdict. one day america learned the difference between innocence and not guilty. it was fascinating to watch. >> all right. come the election time there's a lot of talk right now about

whether speaker gingrich should get out and rick santorum should get out. does it make a difference if they get out right now? if governor romney is ahead and he pretty much has it locked up, and he's already gun -- begun campaign against president obama, are they sort of a drag on his election? >> i think it doesn't make any difference if beginning gets out because the gallop poll shows his second place votes go equally to romney and santorum. it makes a difference if santorum gets out. romney will have to spend about $15 million or $20 million between any and the primary on june 6th. much rather see that money attacking obama, wouldn't you? >> i hadn't thought of it the money-wise. but i think he has already begun to step it up and change his focus away from santorum. >> but, for example, california

is a great case on point. nobody thinks we can carry california in november. you are not going to spend my money in california. but you have to win the republican primary there. so you are going to spend seven or eight million bucks in california. that's what it costs. romney can't afford not to as long as santorum is still running. santorum drops out, the $8 million goes right on the air against obama and really hurts him. >> i hadn't thought about that. >> is and santorum is helping obama by staying in. >> i hadn't thought about that. that's why we bring you on as the expert. i hadn't thought about the the money in california. thank you. >> thank you. >> up next, one of president obama's former law students e said his own credentials are tarnished by his comments. but he talks about a judge who got so angry with the president. we will hear from him next. do you get expensive gifts for doing your job incorrectly? probably not. the gsa workers did and you paid

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>> does president obama know constitutional law 101? that's what mr. smith wanted to know when he called out the president for questioning the supreme court's power. one thing that knows about president obama's constitutional

law knowledge is a student of president obama. he was later a clerk for judge smith. he joins us. nice to see you. >> thank you. >> you wrote a piece today. tell me about your thoughts about then professor' obama -- what he was like as a professor and what he said the other day and what impact does that have? >> he's a very good professor, a likable guy. you have to say when i picked up the wall street journal the day and read the comments overturning it would be unpress denned and extraordinary, i was shocked because that's so contrary to the actual truth. i know that he knows that and i thought a post in my blog that i was embarrassed that he tarnished my educational credentials, which i don't really think that people are going to think less of my university ever chicago education but it's true that the university of chicago was a very

rigorous place that takes the law seriously and to have such a well-known professor make such a huge mistake, it's sort of embarrassing. >> i get from what you are saying you don't think he didn't know the right answer, he is either being sloppy and it was a gaffe, or he was being political and trying to do something a little more sinister, perhaps, trying to influence the court or public opinion? do you have any thought on which it is? >> sure, absolutely. i don't think it was a gaffe. if you watch the remarks, they are very, very deliberate. and i know that the president knows that what he said was not correct and he knew at the time that what he was saying was not correct, and i really do think it was an attempt to influence the supreme court, especially the swinging justices, justice kennedy and to some degree justice roberts. >> have you clerked for the judge who sent the letter off that asked the doj to question

the court and fired the letter off? i'm curious, did that surprise you, that apparent lit president's statements got a little under his skin because he was quite, he didn't back off questioning the d o. j. lawyer in court and not having -- having gotten the right answer he took it a step further. >> he's an incredibly fair judge. policy uniformly poll him in high esteem. he very much tries to follow the law. he's not a particularly aggressive questioner, but one of the things i noticed about the judge's questioning pattern when i was his law clerk is he was often very interested in the issue of jurisdiction. that is, does the court, does the 5th circuit panel, have the right to intervene here? is this properly before us? and this question is not -- it's in the nature of a jurisdictional question so it didn't really surprise me that he asked. >> except wait a second. i mean, he knew what the answer to that question was, i know

what the answer to that question was, the department of justice knows the answers. every american knows the question. he got the answer, and he took it one step further and fired it off to the department of justice. so it wasn't simply this was an intellectual discussion, he was sort of curious perhaps what the attorney general thinks about it, i mean this was something very different. >> well, you know, greta, something that's interesting is he asked for a three-page single-spaced letter. so he wanted a lot of detail here. the thing about judicial activism, it's largely in the eye of the beholder. conservatives tend to think decisions like row versus wade and griswold are activists decision and liberals think others are activists decisionism think the judge truly wanted to hear from the department of justice when it thought it was appropriate for the court to overturn a democratically enacted statute. to me there's a huge difference between roe and the challenge to

the affordable care act. in roe the court was dealing with a right that doesn't appear in the text of the constitution at all, the right of privacy. and here we have a constitutional hook. something to look at in the text. >> you know, tom, you know him, i don't. you know the president as a professor, i don't. but i can't tell you there's one ounce of thought in mind he didn't know exactly what he was doing. at the same time i'm going to take the last one on that. i think the judge new very well all those answers but i'm taking the last word. sorry to do it to you. tom, thank you. >> thank you, greta. >> it's getting more scandalous by the minute and tonight we are getting a firsthand at gsa workers laughing at you, making a mockery of wasting your tax money. video was made by a gsa employee to show at the las vegas

convention. ♪ what's the picture on gsc when inside i swear obama -- ♪ every time he see me rolling on 20. in my gov ♪ [61 all on funds ♪ ♪ i buy every single field i can afford ♪ and i get the hat award ♪ ♪ donate my vacation, love to the nation ♪ ♪ i'll never be under an investigation ♪ >> do you think that employee got fired for laughing at you, mocking the gsa, the taxpayers and the president? no, he got an award at a las vegas dinner you paid for as well and there were more jokes about wasting more of your dollars. >> the hotel would like to tell you about paying for the party that was held in the

commissioner's suite last night. you need to take care of that. and the chair of the oversight committee, she has a couple of questions about the proposed pay increases for executives you mentioned outside. >> and that's not all. news that the gsa wastes more of your money, another quarter of a million dollars. the washington chief political correspondence joins us. it just doesn't stop. >> oh, that's bad. >> really bad. >> it is. well, you know, in bigger political terms, the administration has face add lot of trouble and taken some damage for wasting money for bad policy decisions, for putting half a billion dollars into solyndra. but this is completely different. this is absolute waste and fraud and abuse. it's the classic waste, fraud and abuse. >> but this isn't like an obama administration decision like solyndra. this feels much more systemic. there were, what, 300 people at this convention? >> right. >> this happened a year and a half ago and not one of the 300

people have come forward as a whistle-blower to talk about this. there were a lot of people we heard laughing there. they knew they were taking our money and stealing. this is much more systemic than simply a bad policy decision by an administration. >> and that is the main question for congressional investigators. especially republican congressional investigators who control the house. and that is does this extend beyond gsa, does it go in many other agencies of the government? are there similar wastes of money going on in other places? the white house is really worried about this. they reacted pretty quickly when they found out about this. the head of gsa left, the top -- >> she's a presidential appointment. >> martha johnson, appointed by president obama is out. top two assistants were fired. other people were disciplined. white house is really, really trying to contain this. >> i actually hold the white house much more accountable for solyndra because that they thought about and made the decision. but this, the house is now going

to be hearings. where in the world is the house and oversight before this? first of all, they had a year and a half since it happened and they didn't find it. number two, why aren't they monitoring? oversight means oversight. they should have headed it off at the pass long ago. they should know what's going on in all the administration. that's their job. but it only comes in after the money is wasted and there's a scandal and they can say somebody else did it. >> oftentimes it takes a whistle blower to find something like this. and you have the question should the overseer have caught it or should the head of the executive branch prevented it. >> but who wrote the check at gsa? who paid for it? who authorized it? >> exactly. this is money that congress authorizes and the agencies actually spend them. but politically, remember president obama said in the campaign i'm going to go through the budget line by line and line and find waste, find places we don't need to be spending money. this could hurt him politically if there's more of it. >> i can see them splitting

harris. this was like gross incompetence and wasting money. something like solyndra they actually thought about and there were red flags and they still did it. do you want to die by hanging or the electric chair? both are bad. >> and here again the question is always more. the solyndra people say are there other green energy projects money was thrown into that was lost? and the answer is yes. >> the environmental movement should be furious. they have single-handedly set the environmental movement back about 30 years. >> this is classic waste. and it has happened in other administrations. we all know that. but right now it's happening round barack obama's administration. he better get a hole of it pretty fast. >> thank you. >> thank you. >> just two minutes away. nfl scandal heating up today. just released recordings of the new orleans defensive coordinator urging his ♪

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>> from america's news headquarters, i'm ainsley earhardt. president obama signing a bipartisan bill meant to make things easier for small businesses to grow. the legislation helping small companies to go public sooner, by reducing costs and cutting through some of the red tape. the bill also making it much easier for startups to raise capital. president obama saying the so-called jobs act is a potential game changer for entrepreneurs. the russian arms dealer known as the merchant of death has been sentenced to 25 years in prison. he was arrested in thailand and brought to new york in 2010 to stand trial. he was convicted on terrorism charges. the judge ordering him to forfeit $15 million. prosecutors say he was ready to sell up to $20 million in weapons, including missiles to shoot down u.s. helicopters. i'm ainsley earhardt. now back to "on the record." check out our web site, foxnews.com. record."

>> now to a mega-millions mystery in maryland. a mcdonald's worker college to have a winning ticket, but lottery officials saying today they still don't know who the big winner is. so what is really going on? bret jenkins hit the ground in baltimore to find out. >> greta, this is the location alleged to be the hiding spot of that missing lottery ticket here in baltimore. perhaps the most famous mcdonald's in the country. what is mcdonald's saying about it? they wouldn't talk to us on camera. but the owner, she said recent media reports are now claiming that a manager at my mcdonald's restaurant hid the ticket somewhere on our property. i have no evidence to support these claims. as for ms. wilson, she still isn't talking to the press after her press conference yesterday but her attorney, edward smith, did speak to us and, well, he isn't saying a whole lot.

>> where is this ticket now? >> well, that's a very good question. it's one that i can't answer. >> have you asked your client where the ticket is? >> that's not important to me. i have an obligation to represent a client who has what she believes is an interest. >> she has said that the ticket is secured safely somewhere in the mcdonald's. is she being barred from going to the mcdonald's? does she want to go to the mcdonald's? >> i have no idea about the mcdonald's. and, of course, the lottery commission doesn't care whether the ticket is on marchs or venus or pluto. >> has she told you whether she won the ticket? clearly she's told the country, and that's why i'm sitting here. but has she told you that she won it? >> well, i'm part of the country. >> is it possible that your client will have the winning

ticket that would have a different time stamp than the pool of tickets that she allegedly bought for the group, and would that be your defense to prove that it was not a part of the pooled group, but yet a ticket, as she said, that she bought on her own? >> first of all, you are a very resourceful and first journalist because you are the first person who brought up the time stamp element. and the answer is quite simple, i don't know frankly. >> a director of the maryland lottery, what can you tell us? >> as of today no one has contacted the maryland lottery to claim the ticket. >> can you confirm for us that there is a winner in baltimore? do you know when it was bought? what can you tell thaws you can confirm. >> we know through your computer system that on friday night less than four hours before the actual drawing that at a 711 on liberty road in baltimore county, maryland, 711 sold one of the winning tickets, one of

the three winning jackpot tickets in the country. >> if you are wondering what is going on we are having a few technical difficulties in d.c. greta will be back in a minute. can sending a e-mail or text send you to jail? if new legislation is passed, that e-mail or text could land you behind bars. that's coming up next. [ male announcer ] when these come together, and these come together, one thing you can depend on is that these will come together. delicious and wholesome. some combinations were just meant to be. tomato soup from campbell's. it's amazing what soup can do. (boat approaching) guys! no! we've talked about it. it's water! (splashing) save big on great gear at bass pro shops. and bring the kids for a free picture with the easter bunny. when we were determined to see it through.

here's an update on the progress. we're paying for all spill related clean-up costs. bp findings supports independent scientists studying the gulf's environment. thousas of environmental samples have been tested and all beaches and waters are open. anthe tourists are back. i was born here, i'm still here and so is bp.

unfriendly about late night tv is even more. >> a delta airline attendant was removed from a plane this morning because he was acting unstable. yeah. he was saying crazy stuff you would never hear on a delta flight like prepare for an on flight arrival. but the bright side he was immediately hired as a pilot for jet blue. isn't that great? >> before you send your next e-mail or text you may want to think twice. if you live in arizona your message could land you in jail for six months. howard fisher joins us.

howard, tell me, what is this new law in arizona that is subject to some controversy? >> well, it's a modernization of an old law in arizona we've had on the books that says you can't use the telephone to threaten, harass, annoy, offend people offend if you use other words with it. they would like to modern eyes the phone. they say not everyone uses the phone, they use cell phones. but the real concern is they are saying any electronic device. what does that mean? does that mean if i put something on my facebook somebody finds offensive, can i be sent to jail? if i put something on twitter that annoys and use as word somebody considers profane, can i go to jail? that's really the concern. can you take basically a 1970 law on telephones and can you modern eyes it for the 21st century without running afoul of people's first amendment's

rights? >> i'm curious, the statute, in looking at it as it related to telephones, if it were constitutional as a telephone, i suspect it would be constitutional to electronic media now to e-mails and everything. i wonder now if your state shouldn't revisit whether the telephone statute that was in effect was constitutional or not to begin with. >> oh, i think there's some questions already being raised about that. no one has challenged it because of the fact that it doesn't come up that often. it's a fairly complex statute. it's not just that you annoyed someone, but that you have done it with a bad word, suggests somebody had bad conduct or threatened them. say i would send an e-mail to rush limbaugh and say i think your show would be more entertaining if you had a bunch of monkeys throwing feces. that was meant to offend. but if i substitute feces for

something else, you can go to jail and that's the fear. >> when i thought it was simply to annoy i thought i would send my brother and sister down there and get them six months of peace because i get annoying e-mails from them. but i'm not sure even applied to telephone, although the words may be offensive, even obscene, i don't think, i'm not so sure your telephone statute, the original one is constitutional if it were to be reviewed. >> that razzias question. i think people believe telephones are different. if you are calling somebody, a phone, even with caller i. d., sort of interrupts things. people call in the middle of the night, the phone rings, it alarms people. you get an e-mail, let's even assume you have your blackberry next to the bed, so it chirps, it doesn't really offend. >>. >> i love the word you use the word alarm. we had an alarm going off in the studio a few minutes ago. it's been a crazy night. tell me if you like the alarm in the background and tell us what

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