court ruling on immigration as one of the justices goes directly after president obama in his written opinion. brand new hour here of "america live," welcome, everyone, i'm megyn kelly. the high court earlier issued a long-awaited ruling on arizona's controversial immigration law, s.b. 1070. the majority blocked three parts of the law but let stand a critical fourth part, the power for police to ask about one's immigration status when they have reasonable suspicion to do so. but the real drama came with the dissenting opinion from justice antonin scalia which mentions the president's recent decision not to deport on his own, in other words, through the department of homeland security he implements this policy, not with the approval of congress, some 1.4 million young illegal immigrants. justice scalia writing, quote: there has come to pass and is with us today the specter that arizona predicted, a federal

government that does not want to enforce immigration laws as rib and leaves the states' borders unprotected. so the issue is a stark one. are the sovereign states at the mercy of the federal executive's refusal to enforce the nation's immigration laws? shannon bream live in washington at the high court as she has been all morning. shannon, and so it pits one of the most conservative justices on the high court directly against the president when it comes to the immigration policies of this administration. >> reporter: you're exactly right. and it looks like a head-on collision today. it's interesting that people on both sides of this law are claiming victory from this opinion. the opponents say three of the four provisions were struck down, a major win for us. but supporters of the bill say the one section they left standing is the one that matters most. let's talk about what's gone. three provisions to have law that were blocked, section three which makes it a state crime for those required to register with the federal government if they fail to carry a required

registration card. a crime for those not authorized to work in the u.s. to solicit work in arizona and section six which would allow officers to make arrests in some cases without a warrant. you mentioned the part left in place, anyone stopped under state or local law if there is reasonable suspicion to believe the person is in the u.s. illegally. justice scalia who whereon -- wrote an opinion took a swipe at the administration repeatedly. here's another quote from his writings: >> reporter: by the way, before this decision ever came out today, we knew there were lawsuits already drawn up and ready to go challenging what was

left of the bill. so s.b. 1070, section 2b, the fight over that is probably not over, megyn. megyn: shannon bream, thank you so much. and it looks like the white house is already weighing in on this matter with the president saying he is, quote, pleased that the high court struck down those three parts of s.b. 1070. president obama saying, quote, a patchwork of state laws is not a solution to our broken immigration system. it's part of the problem. he added, however, that he is still concerned about the impact of the remaining part of the arizona law that the supreme court upheld and is vowing to work on comprehensive immigration reform that addresses our economic needs and security needs and upholds our tradition as a nation of laws and a nation of imgrants. and he also, i want to tell you, highlights one of his arguments that he did not raise when he got the chance to argue this case through his solicitor general before the high court, and that is the concern about the arizona law possibly undermining the civil rights of americans. the one provision that was upheld was the provision at

issue there, and he writes in his written statement, the president does, going forward we must insure that arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of americans as the court's decision recognizes. however, the president when given the chance chose not to challenge this law on the basis of a civil rights infringement. there is a separate lawsuit not brought by the administration that is winding its way up through the courts that does that right now. also today new poll numbers show a majority of americans wanted the court to uphold arizona's law in its entirety. the latest from rasmussen reports shows 55% may be disappointed today in the high court ruling. only 26% supported overturning the law, 19% were undecided. most voters saying they would like to see a similar law in their state. well, jan brewer is the governor of arizona who signed this law into action. we will see her first live comments today right here in our

next hour. well, we are also learning that the high court will rule on the president's health care law this thursday. now we have the date! we've been waiting all this time. the last day of the high court's session, and the stakes could not be higher. with lasting implications for the white house, the health care industry and literally tens of millions of americans. it's not just a matter of the money that will come out of your pockets or won't, but your health care and your coverage and your relationship with your doctor and so on. so americans are watching this very carefully. today large groups of protesters gathered on the court steps in anticipation of the ruling. >> obamacare has got to go, hey hey! obamacare has got to go, hey hey! obamacare has got to go -- tyranny never, freedom forever! tyranny never, freedom forever! megyn: so what can we expect to see between now and on thursday? tom goldstein is the supreme

court litigator and, tom, i was rivetted to your web site this morning. you had it before anybody had it in term ors of the decision. they live blog the decisions, folks, so if you want to get up to the second information, go to blog.com. down to brass tacks. the big, big decision comes out thursday, and already people like you are handicapping which justice has written which opinion and which justice has yet to issue a majority opinion in a big case, and you think you may know who authored the health care decision. who do you think it's going to be? >> well, i think it's the chief justice. i don't know that he'll put his name on it because it's the accumulation of the work of several of the justices, but the justices really try and spread out their work, and the chief justice from the end of the term didn't end up writing any major opinions, and with the health care case still out there, it seems likely this'll be principally his work, and that's no surprise. he has taken on the leadership

role inside the court on all of these issues, including with respect to health care. it would have almost been surprising if he didn't have the major responsibility. megyn: it'ser terribly frustratg because he is the one who, you know, from the argument both sides thought that they might have had roberts, right? i mean, i remember you -- a lot of legal commentators said the court's going to strike down the individual mandate, doesn't look good for the obama administration. you you said who are one of if not the most avid court watcher we know, says it's probably going to be the opposite. you think the liberals may have gotten chief justice roberts and they're going to uphold the mandate. >> well, we got no clues, that's for sure, from the different opinions that have been authored and haven't. so it remains a complete mystery. it's unheard of in washington, d.c. to get to the end of a story like this and not know what's going to happen given all of the stakes. i do think it's really likely that we'll have john roberts and anthony kennedy in the majority opinion, and that just doesn't give you the answer of who's going to win or lose though.

megyn: i want to switch for a moment to immigration now today because the arizona immigration law when it was argued before the supreme court, would you agree with me that that argument did not go well for president obama's lawyer? >> yeah. the administration has to be incredibly pleased and a little bit surprised that they did as well as they could because they won on two provisions, the toughest provisions that made it a state law crime to violate the federal immigration laws, but the provisions about detaining people, inquiring into their immigration status, the supreme court looked like it was going to uphold broadly. instead, most of the law was struck down. the most important, most controversial provision the supreme court didn't strike it down today, but neither did they really uphold it. they said we need to know more about how the law will be applied, and the key is going to be if someone is held while their immigration status is checked just to check it. so if you're pulled over in a traffic stop, the supreme court pretty much signaled that arizona couldn't keep you there for 30 or 45 minutes.

megyn: if you get it done while they're checking your license and registration, different story. >> completely. and also if you're arrested. so you're going to be held anyway. then they absolutely can check your immigration status. that was a big principle for arizona that was at stake, and the supreme court made pretty clear that the law is completely fine in that respect. megyn: before i let you go, the argument also did not go well for that same solicitor general when he argued the health care law. so for those of us who believe we can read the tea leaves from the arguments -- and i happen to be one of them -- maybe, maybe not so much. we'll find out on thursday. >> maybe not. thanks so much. megyn: tom, always a pleasure. well, one of the organizations involved in the health care lawsuit is the national federation of independent businesses or nfib. and now this trade group that represents small businesses across this country is coming under attack from some on the left accused of betraying those companies even though a majority of its membership is against the provisions in the health care overhaul. we're going to ask stu varney

about the backlash against this group when he joins me in just a few moments. and new worries today that political changes in egypt could be moving us closer to new conflict in the middle east. egypt's new president, a member of a hard line islamic party whose controversial views on september 11th, he's got doubts whether al-qaeda was behind it, not to mention israel and iran are all putting experts in america on edge. ambassador john bolton is here in three minutes with his perspective. and former penn state football coach jerry sankey -- sandusky could spend the rest of his days in jail, but one potential piece of evidence that could potentially get him a get out of jail free card. did the prosecution mess something up thanks to folks at nbc news that could provide jerry sandusky with a golden appeal issue? we'll tell you about it. plus, planning a summer

vacation? what if you get sick? odds are your boss won't give you a do-over, or maybe he will, if you live in europe. we'll explain just ahead. ♪ ♪ [ engine turns over ] [ male announcer ] we created the luxury crossover and kept turning the page, this is the next chapter for the rx and lexus. this is the pursuit of perfection. just $14.99. start with soup, salad and cheddar bay biscuits then choose one of 7 entrees plus dessert! four perfect courses, just $14.99. come into red lobster and sea food differently.

so what i'm saying is,ses, people like options. when you take geico, you can call them anytime you feel like saving money. it don't matter, day or night. use your computer, your smartphone, your tablet, whatever. the point is, you have options. oh, how convenient. hey. crab cakes, what are you looking at? geico. fifteen minutes could save you fifteen percent or more on car insurance. [ music plays, record skips ] hi, i'm new ensure clear. clear, huh? my nutritional standards are high. i'm not juice or fancy water, i'm different. i've got nine grams of protein. twist my lid. that's three times more than me! twenty-one vitamins and minerals and zero fat! hmmm. you'll bring a lot to the party. [ all ] yay! [ female announcer ] new ensure clear. nine grams protein. zero fat. twenty-one vitamins and minerals. in blueberry/pomegranate and peach. refreshing nutrition in charge!

megyn: fox news alert and a reminder now on our top story today. the supreme court has ruled against parts of arizona's controversial s.b. 1070 immigration law today but also upheld one key part. this law has led to a national debate on federal enforcement of immigration rules or the lack thereof depending on your perspective and what states' rights are when it comes to the perceived gap. that has led to some tense exchanges between, for example, arizona's governor and president obama. jan brewer is the golf of arizona who -- governor of arizona, we are awaiting her first live comments, and you will hear them right here on

"america live" today. well, it is just 24 hours after egyptians installed their first freely-elected president. the news is already raising alarm bells inside of america and israel. thousands of supporters in cairo's tahrir square erupted in cheers moments after mohamed morsi was declared the winner, but world leaders were left holding their breath in light of mr. morsi's many unnerving comments in the past, and here's just a little sample. we must restore normal relations with iran. israelis are vampires and killers, he said that with respect to their treatment of palestinians. and, quote, the quran is our constitution and sharia is our guide, end quote. ambassador john bolton is a fox news contributor and former u.s. ambassador to the united nations. ambassador, we talked about this man on thursday and, apparently, you were wrong, the news does not reach paris before it

reaches the united states because mr. morsi did win as we thought perhaps he had. but i'll tell you what, in getting to read a bit more about him, i think our viewers are going to get a little bit more concerned. the big headlines today are he wants, part of his agenda is the redevelopment of ties between iran and egypt and the reconsideration of the camp david accord between egypt and israel. he seems to want to step toward iran, does that tell us everything we need to know about mr. morsi? >> well, look, the muslim brotherhood has always been an extremist organization. and his accession to the presidency is as vice president biden might say a big deal. and it's not good news for the united states, it's probably not good news for israel, it's not good news for coptic christians inside egypt. what remains to be seen is the relationship between morsi and the muslim brotherhood and the egyptian military. and while they've allowed this election to go forward and morsi

to be declared the winner, it is not at all clear at this point what the actual allocation of power will be once he takes office. megyn: you look through what this guy's -- now, he was educated here in america so, you know, he's got a western education. but he's gone on to talk about how his state, he believes the top priority should include spreading and protecting the religion of allah. he said that egypt can never be presided over by a non-muslim, it needs to be expressly an islamic state. you can't have any women, it has to be -- the presidency in egypt has to be restricted to muslim men. he talks about how they'll work together to implement sharia law. he talked about the bush administration being the world's terrorism leader and referred to american taxpayers as buying other people's hatred and says they, in egypt, will never forget how to hate america. i mean, is this better for us than hosni mubarak who was forced ott in the air -- out in

the arab spring? >> absolutely not. the idea that getting rid of mubarak was going to bring jeffersonian democracy to egypt was always a mistake. and we've seen in elections in the past months that the muslim brotherhood and even more extremes won something like 75% of the seats in parliament. the military's had that dismissed, but they won this election probably by more than the 52% that the military has announced. so the brotherhood and its supporters and even more extreme elements represent the real center of gravity for the egyptian population. and it's going to be difficult, i think, for the military to continue to exercise control and to keep itself free of more radical islamist factions even within its own ranks. megyn: you know, when we watched the raich spring in egypt, we had all these protesters out

there, but also the obama administration praising, you know, the process, talking about the, you know, the birth of democracy, and you're one person who was consistently sounding the lame, raising the red flag saying let's not get ahead of ourselves. this isn't a democratic revolution in the sense that we understand democracy here in america, and there are real reasons for us to worry about who mubarak will be replaced with. it seems like now we understand why you were concerned. but why, why were we, america, so quick to get behind mubarak's ouster but so loathe to do so, for example, when we saw the birth of an iranian revolution in 2009? >> well, that question should properly be addressed to president obama in the first instance. but, look, loud people in the streets doesn't give you a fair reading of where public opinion is in any given country. that's not how democracy actually operates. and i think the western media were just infatuated with

talking to people in egypt who spoke english, who worked for google as if they represented a majority. we can see in free and fair elections the egyptians have overwhelmingly rejected that position. that's what mubarak told us for decades, if i go, he used to say, the brotherhood will take over. and that is where we are now. with the caveat that the military is still effectively, i think, in control of security and foreign policy. but there's no guarantee that's going to last. we don't have any precedents here. we don't know how morsi and the military will yet along, and i think that the best prediction we can make at this point is a period of real uncertainty but potentially real trouble for israel and a real net plus for iran. megyn: he's called israelis vampires and killers as we mentioned in the introduction, and they, too, are watching this very closely and wondering what the future holds. ambassador john bolton, thank you, sir. >> thank you. megyn: well, a new target now in

some liberal crosshairs with the supreme court decision on the law expected in three days, we're talking about the health care law, of course. the country's leading advocate for small businesses now finds itself under attack by some democrats because it is doing what the majority of its constituents in those small businesses want it to do, and that is challenge the health care law. stu varney is here on that right after the break. and bears gone wild in this front yard, not something you want to see while you're eating breakfast. the conclusion of the bear-knuckle brawl -- nice, nice -- next.

megyn: a fight breaks out in a quiet florida neighborhood, but

forget calling the cops, call animal control. a pair of black bears sparring in the middle of someone's front yard near orlando. look at them. they're kind of play fighting, right? they were only there a few minutes, but they managed to do plenty of damage to the homeowner's bushes and garden. [laughter] well, a group that calls itself the voice of small business is now coming under attack from some on the left. the national federation of independent business, nfib, is one of the leading plaintiffs in the health care lawsuit that we're now awaiting a decision on. three days away, we're told, from the supreme court decision on this case. and now democrats appear to be turning up the heat on this group, questioning its very motives. stu varney is the anchor of "varney & company" on fox business network and joins me now. the nfib's behind the health care challenge for some time, just now they're coming under fire and from whom?

>> well, it's very clear that small businesses in america do not like obamacare. two-thirds of them think it will raise costs, three-quarters of them say you're going to raise taxes on me to pay for everybody else x when offered the chance of tax breaks, most of these small businesses just turned them down flat. that does not go down well at this time with the obama administration. small business is the way we create jobs in america. we've got a jobs crisis. you don't want this particular group coming out saying we don't like obamacare, we don't like the obama administration, so there is this counterattack against them. two leading congressmen writing a letter to the nfib, national federation of independent business, saying, hey, you are not properly representing your membership. you're doing them a bad thing. quit it. not good. megyn: all right. so it's with apologies, it's a tough name to propounce. raul -- >> correct. megyn: and keith ellison, my

apologies to hah a call. anyway, they wrote this letter or, and they're accusing the nfib of acting against small business owners. they suggest karl rove is behind the lawsuit, do they have any basis for that, and what is their claim because you're saying that two of -- two-thirds of small businesses oppose obama obamacare, they say that's not the case. >> i don't know which poll they did, but the poll that the national federation of independent business did of its own 300,000 members was very clear. 65% say the costs to us will go up with obamacare, 77% said you're going to raise taxes on us. we don't like that to pay for everybody else. i don't know who the administration is polling when it looks for its idea of what small business thinks. but the nfib is very clear. our guys do not like obamacare.

megyn: and so what kind of backlash are they likely to face if the decision comes out on thursday and the decision doesn't go as the administration wants? >> frankly, none. megyn: what's the point of this letter? >> an attempt to get out in front and be critical of this group -- megyn: saying it's partisan, they don't really represent small business, it's a karl rove thing. is there evidence? >> none that i know of. megyn: so they're tarring them with a republican, right-leaning sort of agenda. >> i would hesitate to use the word propaganda, but that comes pretty close. the administration's view, this is how small business really feels, not the way they say they feel through the nfib. propaganda is a very strong word, but it's an attempt to intimidate before you get this big decision on thursday. megyn: well, they may be too late because nothing the nfib can do right now even if they wanted to bow down concern.

>> it's the political reaction to it. megyn: it's exciting, right? we're going to know one way or another. as a news story, we're finally going to get the answer to the big question we've been waiting for. and it happens on thursday morning. the supreme court comes out with its opinions on 10 a.m. you will see it on "america's newsroom" -- >> wait a second, you'll see it live on my show -- megyn: i'm sorry! "varney & company" on fbn, and if you don't have it -- >> demand it? [laughter] megyn: thanks, stu. well n writing his opinion on arizona's immigration law, his dissenting opinion, justice antonin scalia went directly after president obama, mentioning his recent decision to refuse to deport some 1.4 young illegal immigrants. that was not argued or mentioned in the context of this case, but justice scalia's got an issue with it, and he asked who will protect the borders of the sovereign states if the federal government refuses to enforce our immigration laws? that fiery debate is three

minutes away. and debby is just a tropical storm right now, so why are some forecasters worried that this thing could produce millions in damage and threaten any number of lives? janice dean has answers. and breaking news just ahead on a letter from the house oversight committee to the white house saying president obama overstepped the guidelines on extending executive privilege to attorney general eric holder. we've got the breaking news. >> i'm going to ask you first of all today, have you and your attorneys produced internally the materials responsive to the subpoenas? >> we believe that we have responded to the subpoenas -- >> no. mr. attorney general, you're not a good witness. a good witness answers the question asked, so let's go back again. er ] how do you trade? with scottrader streaming quotes, any way you want. fully customize it for your trading process -- from thought to trade, on every screen.

and all in real time. which makes it just like having your own trading floor, right at your fingertips. [ rodger ] at scottrade, seven dollar trades are just the start. try our easy-to-use scottrader streaming quotes. it's another reason more investors are saying... [ all ] i'm with scottrade.

home protector plus, from liberty mutual insurance, where the costs to both repair your home and replace your possessions are covered. and we don't just cut a check for the depreciated value -- we can actually replace your stuff with an exact or near match. plus, if your home is unfit to live in after an incident, we pay for you to stay somewhere else while it's being repaired. home protectorlus, from liberty mutl insurance. because you never know what lies around the corner.

to get a free quote, call... visit a local office, or go to libertymutual.com today. liberty mutual insurance. responsibility. what's your policy? megyn: fox news alert. we are waiting for the first live comments from arizona governor jan brewer in response to the supreme court's decision ruling against part of her state's controversial immigration law and upholding one other key part. justice anthony scalia who is part of the right-wing block of the court. there are four conservatives, four liberals and one center right justice and that would be kennedy. scalia is in the right block of the court. he wrote in a scathing descent that he would have allowed the

entire arizona law to go forward and deem it constitutional. he singled out the recent white house decision to block deportation of some illegal immigrants, writing, quote, there has come to pass, and is with us today the specter that arizona predicted, a federal government that does not want into force the immigration laws as written, and leaves the state's borders unprotected so the issue is a stark one. are the sovereign states at the mercy of the federal executive's refusal to enforce the nation's immigration laws? joining me now julian epstein democratic campaign consultant and former legal council for the house judiciary smitty. and jay sekulow. as you read this decent he seems flabergasted that in his view the feds are not enforcing the immigration laws as written. forget if you want to revise them. they are not enforcing them as written and have stepped in and been given a green light by the

majority to prevent states from enforcing those same laws as written. >> well, right, because he puts a real predicament on the table which is the reality. supreme court opinions are written under constitutional theory but there are real consequences when those decision -rs implemented. and arizona is in a very difficult spot here. you've got portions of the law that were deemed preempted. the guts of the law the big provision that was the controversial provision is held constitutional, that is the provision which allows for the stopping and asking if there is a concern that there may be an illegal situation that they were to mandate a contact to immigration. now immigration has been told by the president for certain age groups, don't enforce the law. this puts the states in the worst possible place, where even laws that the supreme court in today's opinion said were constitutional, and could be implemented can absolutely have no effect for certain age groups. no wonder justice scalia was upset. governor brewer is correct that 2b the section that was the most

controversial the court unanimously declared constitutional. but the reality is because of the executive order enforcement of any of these provisions are up for grabs at best and at worst cannot be enforced. megyn: he talks about in his decent, julian that the government says, the feds say they can't enforce certain parts of the law. they can't deport everybody, because they have scarce and limited resources. he points to this pass that the administration gave to 1.4 million young illegal immigrants by saying, obviously that is not the case. you know how much resources it's going to take to do the two-year annual review of the young illegal immigrants this. is about something else. if the states don't have the right to enforce the laws already on the federal books, what are they to do? >> that complaint could be directed at mitt romney and the republican party, because the republican leadership has refused to say whether it disagrees with president obama's

decision not to deport those who were brought here at a very, very young age n. fact you've got a number of republicans how the there who are saying that is the humane and right thing to do. >> he did it for the legislative process. >> please, i don't interrupt you. >> why are you attacking mitt romney when megyn asked a question about the supreme court you're attacking mitt romney. megyn: he can't help himself. i'll give the floor back to you in a minute, jay. >> i don't interrupt you jay. the republican party has refused to say whether it disagrees with the president's decision on that. secondly the court did not uphold the most controversial part. this was an old fashioned slap down to arizona. three of the four provisions, including the three most controversial provisions were declared unconstitutional. the provision that says, you must carry documents, papers to document your immigration status. proet vicious that says it's a crime to look for work if you're an undocumented immigrant. the provision that gives the police unfettered power to do warrantless searches. the only provision that was held

constitutional was a provision that said, in the course of normal law enforcement duties and officer may check on the illegal immigration status. and even then if it's determined that an individual does not have proper status or proper documentation the police can't do much about it. they can't engage in any kind of deportation proceedings. all they can do is simply refer the matter to the feds. the arizona law was intended to create a state criminal in criminal liization of a lack of immigration status and the court shot that down. this was a slap down by the court on the arizona statute. >> well to answer your question. you're right, arizona is in a very difficult spot, because they've got a situation where the law that they can enforce the president by the stroke of his pen has vetoed it. the president had a house and a senate controlled by the democrats for two years, never put forward immigration reform. and julian with due respect the fact of the matter is the

question today is does the supreme court decision bootstrap the state of arizona? and it's not just arizona that is bootstrapped here, megyn it's any state that is trying to protect its citizens. i am all in favor for comprehensive immigration reform which i might add governor romney has said emphatically even in the last few days he is too. but this piecemeal approach through executive orders not only raises serious constitutional issues but it's lousy policy. i'm the grandson of a russian immigrant to the united states. i like legal immigration. my grandfather came through ellis island. he learned to speak english. he did the rules -rblgs he became a citizen he was naturalized. arizona has a very serious problem, this decision does not help arizona. it's clear that a majority of the court said three of those provisions are unconstitutional, that's the law of the land now. the one involving the stop, ask and determine status is constitutional, but you've got a president through executive order that is basically making

that null and void. the states are in an awful hard place. to make this -- this isn't about ro mitt romney, this is about the supreme court's decision and what arizona was trying to do. at the end of the day, the rule of law is the rule of law. the supreme court made a decision. >> a quarter of the time, a conservative court has declared unconstitutional at least 80% of what was in the arizona law, one. two, in terms of the federal responsibility everybody agrees the federal government should take action we should get comprehensive immigration reform, but to the point that is made about president obama's recent decision not to deport, to use the discretion not to deport people who were brought here at a very young age which is not too dissimilar from what republican presidents have done. the point there is that the republican party led by mitt romney refuses itself to say whether it disagrees witness. it's fair to interpret it that it has bi-partisan support what the president did right now. megyn: i want to leave the

viewers -- >> see you thursday. megyn: we are excited about thursday. we'll finally know. i want to leave the viewers with one other quote from justice alaskjustice alaska lee a. the president said at a news conference that it is the right thing to do. megyn: he's always colorful isn't he. >> that is not the law of the land. that is a minority opinion. >> that is a decent it doesn't count. >> a great one at that. >> it doesn't count. megyn: interesting. see you thursday. new developments today in the impending contempt vote against attorney general eric holder. the house oversight committee is about to send a letter to the white house arguing that the president is over stepping his bounds by extending executive privilege to the department of

justice documents that the doj refuses to turn over. details on that immediately after this break. and did nbc news just give a get-out-of-jail-free-card to jerry sandusky? the penn state football coach convicted on child sexual assault charges late on friday evening, but wait until you see how one key piece of evidence could apparently, according to some, make for a strong appeal. >> the judge in this case was marvelous, judge clean was the ultimate jurorrist, he was fair, he was firm, he was reasonable with everything we asked for, the only disagreement obviously we had was our request for a continuance. # are you receiving a payout from a legal settlement or annuity over 10 or even 20 years? call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today.

fight both fast with new tums freshers! concentrated relief that goes to work in seconds and freshens breath. new tums freshers. ♪ tum...tum...tum...tum... tums! ♪ [ male announcer ] fast relief, fresh breath, all in a pocket sized pack.

megyn: fox news extreme weather alert now. tropical storm debby now deadly and may get worse. the massive swirling system is

spawning multiple tornadoes hammering there's west coast. another tornado near tampa killing a woman in her home. meteorologist janice dean is live in the fox extreme weather center for more. >> reporter: we are waiting a new advisory. typically it comes out at 2:00, sometimes we get iter leave. as soon as that comes out we will bring it to you. it's going to give us new coordinates. we've had the hurricane hunters out investigating this system. you can still see the swirl here, low level cloud cover. the good news is we're seeing some dry air, it's very dry across the southern plains and that is kind of getting into the system and breaking it apart. that is great news. however, we are expecting it to continue to meander across the gulf of mexico and bring more rain to florida and the northeast gulf coast states. here is our tornado watch because of this swirling system and the friction across land we could see the potential for tornadoes. we saw dozens of reports of tornadoes yesterday. we have a severe thunderstorm warning here north of for the

myers, tornadoes are a possibility. and the rainfall we'll continue to see heavy rain throughout the day today overnight tonight and in through the next couple of days. here are some of the storm totals, actually we updated that brooksville, florida, over 14 inches of rain. that is going to cause flash flooding. here is the last advisory that we got at 11:00, a new update coming out at 2:00 and we'll bring you the very latest. right now, megyn kind of meandering and bringing much more rain to this area that doesn't need to see any more rain. back to you. megyn: coming up right after this break there are new developments in the impending contempt vote against attorney general eric holder. now it is scheduled to happen we believe this thursday, but before that the thousands oversight committee is about to send a letter to the white house keying up this fight suggesting the president has overstepped his bounds in asserting executive privilege here. we will have breaking news and one of the top house republicans on this right after the break. [ male announcer ] this is the age of knowing what you're made of.

why let erectile dysfunction get in your way? talk to your doctor about viagra. ask if your heart is healthy enough for sex. do not take viagra if you take nitrates for chest pain; it may cause an unsafe drop in blood pressure. side effects include headache, flushing, upset stomach, and abnormal vision. to avoid long-term injury, seek immediate medical help for an erection lasting more than four hours. stop taking viagra and call your doctor right away if you experience a sudden decrease or loss in vision or hearing. this is the age of taking action. viagra. talk to your doctor. really? 25 grams of protein. what do we have? all four of us, together? 24. he's low fat, too, and has 5 grams of sugars. i'll believe it when i--- [ both ] oooooh... what's shakin'? [ female announcer ] as you get older, protein is an important part of staying active and strong. ensure high protein... fifty percent of your daily value of protein. low fat and five grams of sugars. see? he's a good egg. [ major nutrition ] ensure high protein... ensure! nutrition in charge!

any moment now the white house will receive a letter from house oversight committee darrell issa, this is the next step toward an unprecedented contempt of congress vote expected in the house this thursday against attorney general eric holder. that vote will come despite last week's move by the white house to lockdown the fast and furious documents in question. remember this operation started by the phoenix atf, they let guns walk into the hands of some mexican criminals. they were going to follow them. they didn't. hundreds died in mexico and at least one border patrol agent died here. republicans have been investigating this and democrats every since. now they are stonewalling, there is an impasse. we are told that mr. issa's letter why say they believe

president's assertion of the executive privilege is wrong. all of this as the fate of the attorney general and his future in that role hangs in the balance. congressman david schweikert joins me now. there is a lot of news involving your state today, sir. we'll get to that in a moment. i want to ask you about the showdown we are headed down simultaneously with all the breaking supreme court news. this thursday you believe it will happen in the house. >> my understanding is we are still heading towards a full vote in the floor with regards to the contempt charges. megyn: chairman issa says he believes the votes there are. >> i absolutely believe the votes are there. i won't be surprised to see one or two democrats who are also very frustrated with what the white house has been doing. megyn: really? >> you can't keep giving lip-service, you want open and truthful government and then turn around and support this type of stonewalling that is coming from the white house. megyn: what is this letter about? many people thought the president exerted executive privilege and, you know, that was going to put the house republicans in a tough position

to go forward. now mr. issa is krapting some sort ocrafting some sort of letter to the white house, not to eric holder who he has been writing to for months, to the white house saying i'm not buying your claim of executive privilege. we gather, we haven't seen the letter. >> my understanding is chairman issa and the committee are trying to articulate here is the bullet points, here is the facts outside of the political theater of why we believe eric holder is in contempt of congress and why your executive order of executive privilege is out of the mainstream of what is going on here. megyn: i know that there is some risk perceived by some republicans in proceeding with the concept vote against the attorney general because there is a risk to you of looking like you're going after him or making people sympathetic to him or looking like our over stepping into a partisan fight now as opposed to saying we regret his decision not to comply. >> it's a brilliant way to phrase it. for many of us the real argument with this election season is

about the economy and the jobs and the debt. does this become a sideshow that in many ways the white house -- megyn: does it? >> i hope not. the president may stand up and claim, well look they are being mean to me. but this is the very president that told us he was going to drain the swamp. let's face it. he drained the swamp and has turned it into a cesspool. megyn: the president came out with a statement praising the supreme court and remained concern about the practical impact about the remaining provision that was left standing that allows the police at a traffic stop or so on, if they have reasonable is suspicion that the person is illegal they can ask about immigration stat status. this is not a basis on which the president ultimately chose to challenge the law. your thoughts on this sth. >> i'm one of those who believe

this white house is in hard-core election mode. it's now the campaigner in chief. and he's basically used my state, and let's face it the devastation this federal government has done to this state by not enforcing the immigration laws and wants to turn it into a wedge issue. it's not a wedge issue. this is about enforcing the law. and, yes, out of the four provisions, three of them were struck down but the most controversial one, and the one that actually has the most meaning appears to be upheld. it is going to be fascinating to see now the phebs of as it begins to bmechanics of how it's going to be enforced. megyn: the court said they have to see how it is applied. got to go, sir. thank you for being here. all the best. we are getting more from arizona where governor jan brewer moments ago says the arizona immigration law is down but not out. coming up we will hear from the woman who went up against the obama administration and championed that law in her

state. governor jan brewer in arizona will be here live with her reaction on today's decision in three minutes. ok! who gets occasional constipation, diarrhea, gas or bloating? get ahead of it! one phillips' colon health probiotic cap a day helps defend against digestive issues with three strains of good bacteria. hit me! [ female announcer ] live the regular life. phillips'.

it's about time we madeer ] our homes work for us.. so let's make our dryers do the ironing. have our fridges cater our parties. and tell our ranges to whip up dinner. let's plug in to summer savings before they're gone... ...without wasting an ounce of energy with smart machines that turn housework into house play. more saving. more doing.

that's the power of the home depot. right now, save $600 on this maytag french door refrigerator, just $1,598.

megyn: fox news alert, a week that could make or break president obama's re-election chances. two landmark supreme court decisions, and the looming contempt vote for the attorney general that could upend the entire 2012 presidential race. brand new hour here of "america live." welcome, everyone, i am megyn kelly. first up, the high court's decision on health care is expected this thursday. we're getting it, they've told us thursday's the day, 10 a.m. and whichever way the justices rule could be bad news for president obama. he wins, folks are reminded of a law that's deeply unpopular. he loses, mr. obama has to explain how he spent a year and a half passing an unconstitutional piece of legislation. then there's today's decision on a law popular with many voters. arizona's tough law on imgreat lakes, s.b. 1070.

the supremes striking down key parts of that law but leaving a critical provision standing. here is governor jan brewer moments -- no, no, not moments ago, this is live. let's watch. >> here today. arizona did not ask for this fight, nor did it seek out the task of having to confront illegal immigration. we cannot forget that we are here today because the federal government has failed the american people regarding immigration policy. has failed to protect its citizens, has failed to preserve the rule of law and has failed to secure our borders. the failure to secure the border has created issues we now face regarding illegal immigration. and arizona without question bears the brunt of that failure. we also cannot forget that president obama and his party had both houses in congress for two years and could have secured our borders and fulfilled the promise to fix our broken

immigration system. they failed. in response, arizona had no other choice but to act, and arizona did so. megyn: stand by, this is live, so sometimes there are hitches in transmission, but we're getting it fixed. she's back. >> so today is the day when the key components of our efforts to take up the fight existence illegal immigration -- against illegal immigration has unanimously been vindicated by the highest court in the land. the heart of senate bill 1070 has been proven to be constitutional. arizona and every other state's inherent authority to protect and defend its people has been upheld. i prayed for strength, and i prayed for our state before i signed senate bill 1070.

i did so because i firmly believed it represented what was best for arizona. border-related violence and crime and the significant financial cost due to illegal immigration are critically important issues to the people of our state. and to me. both as governor and as a citizen. as i have said, this is the day that we have been waiting for and, make no mistake, arizona is ready. we know the eyes of the world will be upon us. we know the critics will be watching and waiting. hoping for another opportunity to continue their legal assault against our state. but i have faith in our law enforcement, our brave men and women in uniform have been trained so that they are able to enforce this law efficiently, effectively and in harmony with

the constitution. civil rights will be protected, racial profiling will not be tolerated. senate bill 1070 is equally committed to upholding the rule of law while insuring that the constitutional rights of all in arizona are protected. including prohibiting law enforcement officers from solely considering race, color or national origin in implementing its provision. in fact, under my direction senate bill 1070 was amended to strengthen and to emphasize the importance that civil rights are protected. arizona is prepared to move forward to enforce this law that we have fought so hard to defend ever mindful of our rights, ever faithful to the constitution, and ever worthy of the blessings of god who has given us that,

that we share together as arizonans and as americans. thank you. >> appreciate that. but there were three other sections of the law you signed -- [inaudible] one that would make it a state crime not to work, and the full court, the full court essentially said with the exception of justice scalia, no, you can't do that. so how do you defend having declared that constitutional two years ago only to have the high court slap you? >> well, today the state of arizona and senate bill 1070 was vindicated, and the heart of the bill was upheld. unanimously. >> governor, how effective can it be without -- [inaudible] in considering some of the obama administration's rules on --

[inaudible] support anymore? >> well, with section 2b being upheld, it says that local law enforcement can assist the federal government in the right to ask under reasonable suspicion and whenever practicable to confirm the legal ability of someone being in the state of arizona. >> but the point i think of jeremy's question is, if they had decided -- [inaudible] and today they also canceled the state's 287g status, they're not going to take them up, what's the point? so you stop, you determine somebody's illegal, i.c.e. says, so what? you let them go. you've accomplished nothing. >> i believe that we've accomplished a lot, and that it was upheld by the united states supreme court and that we will move forward instructing law enforcement to begin practicing what the united states supreme court has upheld. >> governor, there is, there are going to be and the court

recognizes that there'll probably be challenges to section 2. you guys lost on three of the provisions, and you did, you did prevail on section 2. but it looks like there's an opening there. some people think characterizing this as a broad victory, and it's not. >> well, this certainly is not the end of our journey. we fully expect lawsuits to be filed and that this portion of the law, um, be challenged, and we will be getting ready and prepared if that takes place. >> [inaudible] i mean, what exactly happens and when? >> well, i think the court upheld the ability of the local law enforcement to assist the federal government in immigration laws meaning that they have the authority under reasonable suspicion, um, to question someone that has already been apprehended, to

certify whether they are, have legal status in arizona. >> does this change anything though? >> i would think it would be in effect immediately. you probably might want to speak to a lawyer, but my personal opinion is when it's upheld by the supreme court, that it would be effective immediately. >> one more question. >> law professors have said that state cities and localities are -- [inaudible] does this really change anything on the ground here in arizona? >> i believe that it does. i think that section 2b was the heart of the law. i think that's where the majority of the concern was, whether local law enforcement had the ability to seek information from people that they ap rehelp in -- apprehend in the middle of a crime. and now it has been validated unanimously by the united states supreme court. >> thank you all for being here. thank you. >> governor, but you still have the fact that the federal

government is saying they're not -- megyn: governor jan brewer in her first comments on camera since the united states supreme court upheld in part and struck down in part the law that is known as s.b. 1070. it was passed under great controversy several months ago by a state that says it was ignored by the feds, by a state that says the limited -- that's the federal government's term -- federal resources for enforcing the existing immigration law have been given in disproportionate numbers to texas and california, and arizona has been ignored. it says it was driven to pass its own law so it could protect its own citizens from illegal immigrants who have caused a lot of havoc in that state. they bore out some crime statistics to prove it when they unleashed this law. nonetheless, it was immediately skewered by those in the anti-immigration crackdown lobby, and governor brewer has been at the center of this. the ninth circuit court of appeals, left-leaning court out in the california region, struck

down this law in large measure. those four critical provisions all struck down. it went up to the u.s. supreme court. justice kagan did not participate, she's a left-leaning justice, because she worked on the case when she was working for the obama administration at the doj in the solicitor general's office. so it was 4-4. we had four conservatives, four liberals, and they did uphold one provision but struck down the other three. you heard governor brewer say they upheld the heart of the law, they upheld the part where the majority of the concern was. that was how she phrased it. it is the part that they spent the most time on at oral argument, the high court, the part that they upheld. the other three will now falter, and arizona is now free to inquire as to someone's immigration status and to detain that person under certain circumstances if they have reasonable suspicion upon pulling that person over, etc., into immigration status. the arizona ruling now behind us, folks. although, by the way, there's

another challenge against that law, the remaining provision already winding its way up through the courts. but health care is just days away, and so is the contempt of congress vote that is now scheduled also for thursday for attorney general eric holder. just ahead, what did eric holder really know? and when did he know it? we could get closer than ever today to answers as a former top aide to mr. holder who was there, he says, when the attorney general found out about operation fast and furious. i will ask him when was that. i will ask him how extensive this operation was, how -- to what extent did the doj have to sign off on this very elaborate program for the first time a former top justice department attorney will join us live with what happened and his thoughts on the matter. plus, could hackers seize control of law enforcement drones here in the united states? an expert on a big risk that's now raising some big alarms in a

live report. and in the penn state child sex abuse case did a television network possibly just hand jerry sandusky a get out of jail free card? kelly's court on some questions being raised today about a critical interview that was played for the jury, but was the entire and proper interview played? >> the judge in this case was marvelous. judge cleland was the ultimate jurist. he was fair, he was firm, he was reasonable with everything we asked for. the only disagreement, obviously, we had was our request for a continuance. when you have diabetes... your doctor will say get smart about your weight. that's why there's glucerna hunger smart shakes. they have carb steady, with carbs that digest slowly to help minimize blood sugar spikes. [ male announcer ] glucerna hunger smart. a smart way to help manage hunger and diabetes.

or annuity over 10 or even 20 years? call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today.

there it is ! there it is ! where ? where ? it's getti away ! where is it ? it's gone. we'll find it. any day can be an adventure. that's whye got a subaru. love wherer the road takes you. wow, there it is

megyn: back, now, to our top story. within the next 72 hours we will be getting the supreme court's decision on the president's health care law. they have now announced that it will be happening on thursday

morning, so there's no more guessing here. we are going to get the decision on the president's signature legislative achievement in about 72 hours. that is looming, today we got the decision on the arizona immigration law, and also on thursday we are told that the house of representatives will be voting on whether to hold attorney general holder in contempt of congress for failing to provide documents on what republicans allege is a cover-up in a gun-running sting that may have cost the life of a u.s. border agent. all of these events have huge political implications for the 2012 presidential race. and joining us now to discuss it is chris stirewalt, fox news digital politics editor and host of power play on foxnews.com. you write the stakes this week for president obama are titanic. this really -- has there been a bigger week in his presidency? >> well, the way this has all stacked up and everything you just described and add into that, don't forget, he's got to

have another showdown with republicans in congress talking about a must-pass transportation bill, this comes all of these things stack up, the supreme court basically casting judgment on his, on the central core of his presidency comes at a difficult time because as we've talked about before, megyn, the first 11 or 12 weeks of this general election season have been very rough for the president. errors that he and his team have made, but outside factors. it's been a bumpy start, and now just as he's trying to get a little steam behind him he rolls into this week where everything's on the line. megyn: is he buoyed by his, you know, three out of four victories on the arizona law, he wanted four provisions gone, he got three out of four, is he buoyed by that partial victory, or does that somehow have negative consequences for him? >> well, i believe the technical political term is weak sauce. three out of four technical i got this, she got that,

everybody claims a win, that probably comes to naught. republicans will claim victory, democrats will claim victory. the supreme court has given them both something to walk away with. and the other thing, of course, is that as governor brewer was talking about before, the part of the law that people identify, you know, she called it the controversial part, you could also call it the popular part, the part that 65% of americans seem to be in support of and our fox news polling back in april said, yeah, you can determine the citizenship of the people whom you stop. that part was upheld. so he didn't, he did not win that central bit. megyn: it's one of those things where one would think when you break it down by ethnic group, and i don't know this -- i recall seeing a poll, but i don't know the current numbers -- that latinos didn't love that law, but the overall electorate did. 55% of americans, wanted to see it upheld. they wanted to see the arizona law upheld. just 26%, i believe it was --

yeah, there you go -- wanted to see it overturned. the other 19% weren't sure. so there is a question even though this is a victory in part for the obama administration about whether politically it is a good thing when it comes to the president's standing with likely voters which is what this rasmussen reports poll was up. >> it's all trade-off. so the president has a western strategy, he wants to win nevada, colorado and new mexico to offset losses in the east if he loses in north carolina. but when you do that to cater to hispanic voters, you also aren't pleasing blue collar white voters in places like ohio and pennsylvania where job insecurity says we do not want anybody else coming in here with work visas. megyn: and finally, give us the perspective on the stakes for president obama on thursday morning. >> look, if this goes poorly -- and i believe that the poorest way it could go for the president would be that the court would strike down the individual mandate, the compulsory insurance provision

of this law and leave sort of this zombie law that has a trillion dollar hole blown in the bottom of it -- then the president has to come out and say what he wants to do. that is going to be very tricky because there are not a lot of good solutions that don't involve phrases like tax increase or a single payer. megyn: not terms that have been very popular in the american lexicon as of late. >> right. megyn: chris, thank you. >> you bet. megyn: coming up, something you have not seen before. matt miller is a former top aide to eric holder. he says he was with the attorney general when word first came about the operation now known as fast and furious. mr. miller joins us live for the first time since this story broke. in five minutes. and then we'll be joined by a former doj official with his take on what mr. holder knew and when he likely knew it. plus, planning a summer vacation? what if you get sick? odds are your boss isn't going

to give you a do-over on your summer retreat, say, oh, that didn't count because you were will. or will they? we'll tell you just ahead. ♪ ♪ i'm making my money do more. ♪ i'm consolidating my assets. i'm not paying hidden fees or high commissions. i'm making the most of my money. and seven-dollar trades are just the start. i'm with scottrade. i'm with scottrade. i'm with scottrade. and i'm loving every minute of it. [ rodger riney ] at scottrade, we give you commission-free etfs, no-fee iras and more. come see why more investors are saying... i'm with scottrade.

how math and science kind of makes the world work.

in high school, i had a physics teacher by the name of mr. davies. he made physics more than theoretical, he made it real for me. we built a guitar, we did thingwith electronics and mother boards. that's where the interest in engineering came from. so now, as an engineer, i have a career that speaks to that passion. thank you, mr. davies.

megyn: well, if you know anything about the europeans, it's that they spend a lot. they take their vacations very seriously. in fact, a recent court ruling will let workers over in europe who get sick while they're on vacation simply take another vacation. saying it's not fair that someone should lose vacation days that they have earned. robert gray is with the fox business network. i mean, i laugh only because of

my envy. >> absolutely. you know, no one does vacation like the europeans, forget chevy chase. this is a different kind of vacation insurance than we know here in the states. get a load of this, as you mentioned, this was a case brought about in spain by spanish workers who got sick while they were on vacation. they said look at the fine line, you know, in our collective bargaining agreement, there's a distinction between the sick leave and their annual leave. and so they took this to court, it went all the way to europe's highest court, the court of justice of the european union. they ruled if you are sick on vacation, those days will count as sick leave. paid annual leave, that time is separate. most of europe is guaranteed 4-6 weeks off. get a load of this, megyn. if you've been in the work force for ten years, the u.k., well, they pretty much double up what we get, 28 days. france, greece, spain, germany, some of those countries, obviously, making a little bit more of their time than others. the u.s. we get 15 days. by the way, no nationally-mandated minimum

here. but this, of course, as european nations are trying to cut their pay and benefits for the public sector. and one last thing, megyn. no doubt doctors at these vacation destinations, by, that's going to be one top job to have and one tough appointment to get, i'm sure. megyn: right, right. and it's going to be like what qualifies as sick, you know? i'm out. [laughter] all right, thank you, sir. >> sure. have a good one. megyn: right after this break, matt miller is a former top aide to eric holder. he says he was with the attorney general when word first came on the fast and furious gun-running scandal. mr. miller joins us live for the first time since this story broke on what mr. holder knew and when he knew it. that is three minutes away. and later in the penn state child sex abuse case, did one network just manage to hand jerry sandusky a get out of jail free card? his lawyer seems to think so. kelly's court on some big questions about some nbc video. summer road trip, huh?

as the hotel experts, finding you the perfect place is all we do. this summer, save up to 30%, plus get up to $100 on us. welcome to hotels.com.

that's a good thing, but it doesn't cover everything. only about 80% of your part b medical expenses. the rest is up to you. so consider an aarp medicare supplement insurance plan, insured by unitedhealthcare insurance company. like all standardized medicare supplement plans, they pick up some of what medicare doesn't pay. and save you up to thousands of dollars in out-of-pocket costs.

call today to request a free decision guide to help you better understand what medicare is all about. and which aarp medicare supplement plan works best for you. with these types of plans, you'll be able to visit any doctor or hospital that accepts medicare patients... plus, there are no networks, and you'll never need a referral to see a specialist. there's a range of plans to choose from, too. and they all travel with you. anywhere in the country. join the millions who have already enrolled in the only medicare supplement insurance plans endorsed by aarp, an organization serving the needs of people 50 and over for generations... and provided by unitedhealthcare insurance company, which has over 30 years of experience behind it. call today. remember, medicare supplement insurance helps cover some of what medicare doesn't pay -- expenses that could really add up. these kinds of plans could save you up to thousands

in out-of-pocket costs... you'll be able choose any doctor who accepts medicare patients. and you never need referrals. so don't wait. with all the good years ahead, look for the experience and commitment to go the distance with you. call now to request your free decision guide. this easy-to-understand guide will answer some of your questions, and help you find the aarp medicare supplement plan that's right for you. megyn: in less than 72 hours, we could see a contempt of congress vote against attorney general eric holder over the "fast and furious" channel. it was a gun running singh operated by the phoenix atf, in conjunction with the doj. but ultimately lost track of guns. 2000 tons. that ended up in the hands of mexican drug cartels.

in minutes you hear from a former justice department official who believes white house had to know what was going joined by someone who was in the room when he said attorney general eric holder first learned about the botched guns operation. matthew miller. he's a former aide to the attorney general and former justice department spokesman. >> thank you for having me. lisa:. megyn: there is much controversy told congress that it was not until, i believe it was, early 2011. he first found out and congressional investigators had been questioning that. were you at him and in the room when he found out, and what is the data back? >> well, i don't know the exact date, but it was early 2011, and i remember clearly when he saw

the first credible allegations that gun walking had had. you have to remember that eric holder has spent his entire career in law enforcement and has put criminal behind bars and knows what our appropriate tactics and are not. he said if gun walking happened, it is wrong, it is not a legitimate law enforcement tactic, and it needs to be stopped. the independent inspector general into investigate whether it happened, if the ig found evidence of wrongdoing, he would hold people accountable. number two, he sent clear orders saying that gun walking is not the policy of the justice department. if it is having come it should stop and it should not happen again in the future. who was the person who informed him? >> you know, i don't remember. the the public and allegations were first -- there was public reports. there were unclear allegations and then there were whistleblowers and came forward

with what seem to be credible allegations come and that is when he asked the inspector general to investigate one you don't remember who first told him that mr. holder, this program goes way beyond and involves giving guns to very bad criminals in mexico? >> it wasn't so much any one person in the chain of command, it was the public allegations of coming forward. the press and letters from members of congress that made them first aware. megyn: there is a program at the department of justice, you know, it is known as a step. are you familiar with that? >> i am. megyn: this program, you hope to get the ocdet destination. according to chairman i succumbed a republican who is leading this investigation in a house committee says that "operation fast and furious" was designated as a ocdet operation in january 2010, which is almost a year before brian cherry was

murdered. he claims that he is getting all the bells and whistles treatment. twelve months before you say your former boss knew about it. is that -- could that be true? >> well, i will take chairman i says word for it. even if it was, he has really gotten all of the facts and documents from everything leading up to when "fast and furious" was stopped. he has gotten all the documents from doj. to find out what happened. and he hasn't been able to show that anyone in senior leadership knew about the illegitimate gun walking tactic. there were, of course, people injustice who had been informed that an "operation fast and furious" was happening, but just hearing the name does not tell you anything. what we need to know at main justice was that gun walking was happening. no one in the field ever pass that information to the main justice. it is unfortunate because we might have been able to stop it sooner. megyn: matt, typically in operation that goes through this

fancy program, ocdef, the wiretap applications at doj that they would have had to sign off on, and they did sign off on, by the atf in phoenix, it would've had to be very detailed and had to be reviewed in great detail by senior justice department officials because of the importance of operations within the ocdef program. was that the case here? >> well, one of the things that chairman i felt looked into is that. what he has discovered is that standard operating procedure for the repeal of those wiretap operations is that senior department officials and the criminal division review summaries. the summaries, from what come out publicly, never mentioned anything about gun walking. they, in fact, never had the information to show that gun walking has happened. but i think that this goes along with what chairman eisner has done from the beginning, which he often makes these allegations and then scrambles for support.

when he can do so, he moves the goalposts and moves on to something else. megyn: so the summaries of those wiretap applications may not have had the most nefarious details. senior officials may not have known about the most nefarious stuff. we could see that somebody at doj had to sign off on the more nefarious operations and aspects because somebody did sign off on those wiretap applications, which typically happened to be very detailed. >> no one at justice, and there has never been any evidence that anyone in a senior official position -- [talking over each other] megyn: somebody at doj had to sign off, did they not? i am talking about the controversial aspects of the operation. >> there has never been any evidence that anybody at main justice signoff on the gun walking tactics. not only that, but ken nelson, the head of the atf, actually testified to darrell issa's committee that he never told anybody about the gun walking. megyn: feebly that president

obama and eric holder have talked about more controversial aspects of this case? the gun walking tactics that were used? to i don't know. i have heard the attorney general testified that they have not talked about it. i believe that to be the case. you know, the five minutes they have talked about the public coverage of it, but i have no idea about the underlying operation. megyn: is a person who is a spokesperson for the doj, one of the categories of documents that they are withholding from chairman isaiah is media discussions. discussions within your department. do you think that is appropriate because even folks who have been defending the doj on this have said, really, we can't even know what the media people were saying to one another about this? powers that fall under a deliberative process? >> well, what it has to do it is you have to look at where chairman issa started. first i'm just all the information that happened in "fast and furious." then he asked all the information that's what led to the creation of that every pore,

a letter which created so much controversy. and he got that. when neither of those sets of information backed up his claim, he then moved the goalpost to all of these deliberative materials about how the department has responded to media inquiries, how it has responded to congressional inquiries, and they really have nothing to do with the underlying operation of "fast and furious" come and they won't do anything to help find out how "fast and furious" came to be. they really go to the heart of the deliberative materials that the justice department has never turned over. although i would add, just quickly, the department -- they bend over backwards and offered to provide those materials to the chairman last week. he turned it down because he wanted to go ahead with the contempt vote. megyn: yeah, he was offered some 1400 documents and he was not holding mr. holder in contempt without seeing the documents. matt miller, we appreciate you coming on with the attorney general's perspective. >> thank you. megyn: all the best.

for a response, we are joined by andrew mccarthy. he is a former assistant u.s. attorney. he writes for national review online and other outlets of media. great to have you here. you wrote a piece about this ocdef operation. you will come as a former u.s. attorney and doj official. he said this is a huge deal, and if this really did have -- if this was a ocdef program back in 2010, 12 months before brian terry was killed, 12 months before the attorney general said he knew about it, it is highly likely that somebody high up at the doj did sign off on it. >> yeah, high up. there were two numbers that are interesting but i would like you to think about. 80,000 and 8000. they keep talking about how eric holder brought in a special prosecutor or, i'm sorry, inspector general. megyn: is the person who's going to get to the bottom of all this. >> that is to say he wants to be

patted on the back for doing this instantly. the inspector general has 80,000 documents that have been produced somehow or another within the justice department. issa's committee has gotten less than a thousand of the documents. preposterous for me to hear these guys say, issa has gotten everything, and then accuse him of, you know, just stating the facts. megyn: is getting everything he is entitled to? >> this is the most transparent demonstration in history. two things. number one come if they're going to be transparent, they ought to be turning over the documents. what we know about this administration, in the national security realm, is if it happened the way that they said it happened, that we should be giving eric holder accommodation and not condemning him -- to release it, because that's what they do with national security stuff. megyn: that would be inconsistent with the weight doj has done it in the past. you don't want congress to be bothering doj. listen, i want to ask you -- about what matt said.

there were wiretaps in "fast and furious." you cannot get one without the doj signing off. there is no question that the doj gave atf the next wiretap that they needed. he got those wiretap that they needed. the question is whether those wiretap applications say, how detailed were they, and what the doj said -- that seem to be hedging on making a distinction, i should say, about senior doj people. summaries that no one has proved had the controversial stuff in them. you tell me come as u.s. attorney, with some -- would some lower-level doj person, would somebody have had to have seen the details of the operation? >> not just somebody come and they have an office of justice. the office of enforcement operation that scrutinizes the applications for the u.s. attorneys want to make for wiretapping correct content throughout the country. they would have to say what the alternative investigative

technique was beside wiretapping that had been used in the investigation, and why you need wiretapping in addition to them in order to succeed with whatever the goal of the investigation was. there is not, and that actually does scrutinize carefully by a division in the justice department, that reports up the chain of command. there were several wiretap applications. this isn't just one of these things where there is one. the second thing is, this case is the crown jewel, gun trafficking case, in the justice department. it is at ocdef designation in january 2010. to get ocdef designation, the u.s. attorney and investigative agency have to submit a proposal that outlines what they are plans are to the justice department. they give them that in 2010. the one u.s. attorney who they say did know about this. that is one person who does have the information on his hands in arizona. >> what people need to understand is that this is not an outlier case in arizona.

it is a ocdef case and getting ocdef funding, it is a main justification they continue to watch it carefully, to make sure that all of that funding continues -- megyn: is it possible that the atf was doing this rogue program within a broader operation that the administration had approved. they were doing a rogue program, letting guns walk that they never talked to anybody about that doj to . >> if that is how it happens, there will be a paper trail that says that. they should just release it. the one that could end the whole matter. end of story. >> don't forget, issa's committee says that in the months before agent brian terry was killed, there were actually plans between the office in arizona and the justice department to have the attorney general attend a press conference that was going to announce the end of the "fast and furious" investigation, and all of the arrests. it is not conceivable to me that they could be having those kinds of discussions, and yet nobody at the senior level of the justice department is anything about what has happened.

megyn: they knew, and they are trying to pull the wool over our eyes for it. or they didn't know, and somebody that doj or phoenix atf said so. coming up next, "kelly's court" and the sandusky conviction. could it be overturned based on the tape. reporter: .

megyn: "kelly's court" is back in session. on the docket today the penn state sex-abuse verdict. it was a verdict against jerry sandusky and what could be grounds for appeal. even before he was convicted late friday night his lawyers were trying to get a mistrial. now they will try to get an appeal. all because of an interview the former football coach gave to nbc just after the scandal broke. here is what happened. they played this interview in court, but they played a tape that was edited in a very questionable way. here is the part of the interview that should have been played, and nbc did play it on its program "rock center." this is a noncontroversial version that should have been played, listen. >> are you sexually attracted to young boys, to underage boys?

>> am i sexually attracted to underage boys? >> yes. >> sexually attracted, you know, i enjoy young people. i love to be around them. but, no i'm not sexually attracted to young boys. megyn: but that is not the version the jury saw. the prosecution showed them instead an edited version that repeats the key question-and-answer as though cosich and sandusky were repeating it live. they took a tape from the today show as opposed from rock center and it was provided to hem by nbc news and here is what the jury heard. listen here. >> are you sexually attracted to young boys, to underage boys? >> am i sexually attracted to underage boys? >> yes. >> are you sexually attracted to young boys, to underage boys? >> am i sexually attracted to underage boys. >> yes.

>> sexually attracted, you know, i enjoy young people. i love to be around them. but no, i'm not sexually attracted to young boys. megyn: and now the defense is making an issue of this. joining me now to discuss it lis wiehl mocks news legal analyst and mark eiglarsh, a defense attorney. megyn: did the prosecution knowingly play the wrong tape in. >> the prosecution knowingly played the wrong tape so that is the argument they are going to make an an appeal. it's a decent appellate argument, but the question that surrounds it is would it have made a difference? if you hear it the first time and the question being asked the second time would that really make a difference? in totality probably not. but it's a decent defense argument to make. megyn: why do you say the prosecution knew? my information is they got the

tape from nbc, they played it, after it aired before the jury the prosecution was told by the network, wait a minute we should have given you a different version, am i wrong? >> you're right on that. the point is, is whether the defense knew or not. the defense did not know. going into the trial not having the trite transcript and tape, not being able to object. they didn't object because they didn't know. megyn: is it their fault, mark? if i'm the defense lawyer i say i want the entire raw unedited tape. aoeuplt goini'm going to listen to it with my associates and if they play it in court you say, your honor that's the wrong tape. >> they should have done that. if they didn't use that, shame on them. lis aouzed the words, decent appeal. this will go no where. the appellate courts in the worst says scenario will call this error. >> but harmless. >> it will be a harmless error.

okay maybe this shouldn't have happened but there is overwhelming evidence of his guilt, all of the testimony. megyn: i'm not so sure you're right about that. we'll discuss it more on the other side of the break. chances are, you're not made of money, so don't overpay for motorcycle insurance. geico, see how much you could save. his morninstarts with arthritis pain. and two pills. afternoon's overhaul starts with more pain. more pil. triple checking hydraulics. the evening brin more pain. so, back to more pills.

megyn: nbc news turned overall versions it had of the interviews which is why prosecutors ended up with one that was not right. it was played for the jury, the the wrong one. the judge tried to cure it instructing the jury to look at the written transcript of the full interview ultimately provided to them. the defense lawyers argued the damage was done. on the critical issue of this case. >> the defense will argue that it's stonewalling. it looks like he was stonewalling in this interview when he really wasn't. he answered the question after it was only answered one time. megyn: he was stonewalling but

just not in the way that tape presents it. >> exactly. >> megyn. megyn: mark, you listen to the tape, are you attracting to little boys. i enjoy young people. his actual answer is what got him in trouble not the repetition of it. >> i don't know that i've ever disagreed with you as much as i do now. you are making such to do about this. when you have live witnesses. you have eight, ten live witnesses that went into graphic detail. megyn: 4 th detail. >> it's a question of whether it's an issue on appeal. >> it would be harmless error in the worst case scenario. megyn: the other thing i want to throw out at you is that that first interview was conducted in the presence of sandusky's attorney. that lawyer has himself to blame. for giving the interview and not knowing what his client said when it was played wrong. >> you bring up another issue. ineffective assistance counsel.

he's incompetent, he was incompetent to let him do that. megyn: not only did the lawyer make mistakes but he came out after the conviction and said this. listen. >> the judge in this case was marvelous. judge cleland was the ultimate jurist, he was fair, he was firm, he was reasonable, with everything we asked for. the only disagreement obviously we have was our request for a continuance. megyn: then he praised the jury and said the evidence against his client was overwhelming. lis? >> that is an appellate issue, mark. i hope this does not go to appeal. i hope it doesn't. megyn: mark, 20 seconds. >> it was incompetent of counsel to do that. >> i'll respond. let me make this clear, he was ineffective assistance of counsel outside the courthouse not inside the best argument is that the case started too early. that's his best argument i think it's not going to work. >> i hope not. i hope you're right. megyn: thank you both. we'll be right back. hi, i'm phil mickelson.

i've been fortunate to win on golf's biggest stages.

but when joint pain and stiffness from psoriatic arthritis hit, even the smallest things became difficult. i finally understood what serious joint pain is like. i talked to my rheumatologist and he prescribed enbrel. enbrel can help relieve pain, stiffness, and stop joint damage. because enbrel, etanercept, suppresses your immune system, it may lower your ability to fight infections. serious, sometimes fatal events including infections, tuberculosis, lymphoma, other cancers, and nervous system and blood disorders have occurred. before starting enbrel, your doctor should test you for tuberculosis and discuss whether you've been to a region : that matter most. ask your rheumatologist if enbrel is right for you. [ doctor ] enbrel, the number one biolog medicine prescribed by rheumatologists. [ music plays, record skips ]

hi, i'm new ensure clear. clear, huh? my nutritional standards are high. i'm not juice or fancy water, i'm different. i've got nine grams of protein. twist my lid. that's three times more than me! twenty-one vitamins and minerals and zero fat! hmmm. you'll bring a lot to the party. [ all ] yay! [ female announcer ] new ensure clear. nine grams protein. zero fat. twenty-one vitamins and minerals. in blueberry/pomegranate and peach. refreshing nutrition in charge!