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>> anyjenna's been asking what i want for chris, and i've got the answer. i don't like to get off the couch and neither did this guy. >> is that a ?

>> yes, his wife told him to get off the couch and get outside, he did. a motorized tricycle with a couch and tv. i don't think he gets to watch it it. >> if he has, it's on fox. >> that's right. >> "america live" starts right n now. >> megyn: fox news alert. the controversy over the cancellation of white house tours is getting significantly more dramatic today, as the president now blames the secret service, republicans are challenging the president and the media is putting some heat on the white house now. welcome to "america live," everyone. i'm megyn kelly. the decision to cancel the tours after recent budget changes began a week ago. the debate has become more charged since then. moments ago this video into the fox news room, showing tourists and school children standing outside the gates banned from going inside the people's house now. and the washington post now

calls this decision, quote, bureaucratic hostage taking, and quote, a pound foolish approach. and here is the president yesterday putting the blame on the secret service. >> i have to say this was not a decision that went up to the white house, but what the secret service explained to us was that they're going to have to furlough some folks. >> megyn: chris stirewalt is our fox news digital politics editor and host of power play on foxnews.com live. the secret service? when would i ever get the chance to talk to the secret service? >> i don't know this guy. >> megyn: when would they have sought from me? and that's fun had at the president's expense, he would suggest to george stephanopoulos he had nothing to do with this and no say in it and many in the media are now crying foul. >> well, i'm here to bet you, whoever it was inside the white house who gave the go ahead to that, wherever the origin of that was, or if that was on a menu of possible money saving options from the

secret service, somebody inside team obama, i'm sure, had to look and sign off on the idea that they would close, as you said, the people's house. i mean, what could be sadder than school children with their faces pressed up against the gate. please let us in, can we see the house? pretty please, pretty please. whoever said it's a good idea, that will make the republicans feel really bad if we do that. that person has not had the best weekend. >> yes, because they-- even "the washington post" is saying, this smacks of the old washington monument strategy, as i understand it, that is when you have a budget crunch, and you're the party in power, you shut down the washington monument saying, we had to do it. it wasn't our fault, it was the budget crunch and you just pick something very visible that will get a lot of buzz, hoping that the people will blame the other side. but the people don't seem to be blaming the other side in this instance, chris, and that has folks like rush limbaugh

suggesting that the president's, you know, shock and i'm just as sad as you are comments on abc news yesterday were perhaps less than genuine. here is rush. >> the white house tours have been shut down. >> i didn't do it. i didn't do that, the secret service did that. i had nothing to do with it. i'm fighting to get it reopened, doing everything i can. i'm just innocent bystander here, but when i heard they were going to close down the white house, i was outraged. white house tours are shut down. low information visitors, he didn't do it, he's trying to get it open for us. and the republicans who cut the-- they're trying to embarrass obama and trying to make it look bad. they cut the tours. they shut the tours down. >> megyn: your thoughts? >> well, here is the problem for the president. inside the washington monument and all due deference to the first president of the park service, not that big of a

deal. it's the outside that counts and even looks better from a distance. the white house is about being inside and it also happens to be where the president and his family happen to live, a pretty nice life style. so, by bringing it into his house, bringing it into the place where he lives, and the place where he works, whoever in the president's atmosphere that decided this would be okay to do, brought necessarily into the discussion how the president lives, what he does, where he goes, and what he spends money on and i'll tell you this, you can't have any black tie parties and you didn't have any star spangled events at the white house if you're not letting the school kids of iowa or wherever come in and see the white house. you can't have stevie wonder over for a concert or do anything else fun, interesting or school as long as it's those people with their faces pressed up against the gates and trying to see. the president or whoever chose to do this put the president

in the corner. >> megyn: and stevie wonder can't either-- >> if you want to get technical. >> i didn't say that. >> megyn: and the president is getting some blowback, speaking of getting technical, what he said that george stephanopoulos, this is not a decision that went up to the white house and here is jay carney yesterday. >> the secret service made the decision about its budget and to withdraw personnel from tours and we had to cancel the tours. it's our job to cancel the tours. they cannot cancel them. >> megyn: and why is that -- people are looking at that as an i caught you moment. doesn't that make perfect sense? does that somehow conflict with what president obama said? >> no, basically what he's saying there, yeah, it's fine that -- the secret service did this, they said that their choice was to not staff the tours and they, the white house was technically responsible for sending e-mail to members of congress to say, the tickets that you got for people to come and take tours of the white house you get to be the ones to tell them to

cancel it, na, na, na. and that's fine and accurate, but it doesn't change the political reality for the president when he takes his trip tomorrow, i don't know what's that going to spend-- that's going to be worth ten weeks of white house tours when he takes a trip to illinois to talk about subsidies for green energy and the like. that's ten weeks of school kids getting to see the inside of the white house. >> megyn: and it's golf in florida and the first lady skiing in aspen and people are saying, well, why, why does she get to do that and we basically pay for it and he gets to do that and we pay for it and the kids in iowa can't get to see the house that they also pay for and there's a question not so much about the veracity, it wasn't ultimately the white house's decision, as the suggestion that there was nothing we could have done, you know? the president's got, he's got some power with the secret service. >> he's got some clout. here is a prediction, we've used the highly technical determine before to crawfish, there will be lots of

crawfishing, lots of backward wriggling on this and open it up to school groups and then open it up to senior citizens and veterans by the end, the president will say we never flip flopped on the tours, but in effect, they will have. they'll do it very slowly and incremental hoping we won't notice. >> megyn: we'll see what happens with the white house easter egg roll. >> exactly. >> megyn: you don't have to open the doors, but you need the secret service, anything could be in the eggs. >> and somebody in the bunny suit. nobody wants that gig. >> megyn: all right, chris, thank you. interesting way of thinking getting in the white house, you volunteer for the bunny suit. as the white house shuts down tours in the name of saving money, it appears that uncle sam has cash on hand to pay federal interns, enough money that one advertised internship could pay up to $83,000. that's amazing. about double what the average american makes in a year. later in the show we're going to tell you about the qualifications needed to get the plum job and other

profitable federal gigs. newly elected pope francis beginning his first full day as the leader of the catholic church. quietly slipping out of the vatican to pray at one of rome's great basilicas dedicated to the virgin mary. the priests there said it was a surprise and ten minutes warning that the new pope would be joining them. others in the basilica surprised by the papal visit. can you imagine, and rushed to greet pope francis upon their first sighting of him. they were waiting their turn to kiss the holy father's hand and the pope then left the church and returned to his hotel to personally pick up his luggage and to pay the bill all by himself. it sounds like he had an interesting morning. can you imagine being the front desk clerk, like, um, did you have anything from the mini bar last night after you returned from becoming pope? (laughter) amy kellogg is live with more

from rome. amy? >> yeah, megyn, we are getting some details about the man. some nice little details about the man, and some of these moments, apparently, megyn, he didn't need the mini bar. there was a festive dinner last night after he was elected pope and the-- the official papal car was waiting for him after the election, but he refused it. he said that he wanted to take the mini bus back to the casa where they were all staying and ride with his fellow cardinals and said to them at this festive dinner according to the vatican, i hope the lord will forgive you for what you have done. now, he is giving mass right now, his first mass, for those cardinal electors and we're getting a chance to hear his voice and enjoy the ceremony of this period and take a look at the michelangelo frescos in the sistene chapel. he prayed at several points of

profound significance to him are the relics from the manger from bethlehem and where the founder loyola once gave math and to the priest's house where he stayed in the weeks leading up to the conclave. as you mentioned he tried to pay the bill just to set an example to others. now, there's more talk this morning about his humility. pope francis' and one of the cardinals said that he has the grit necessary to tackle the problems of vatican bureaucracy and at this mass right now, megyn, we have just been witnessing, pope francis said that life is a journey and it's when you stop that you know you're in trouble so he suggested that everyone, believers continue to walk with the lord on the the journey of life. the and cardinal sean o'malley one of the darlings during

this conclave period sent a message out to the world and to the new pope and said basically though he's very happy about this, he's worried that being pope is sort of like being a prisoner in a museum and he recalled how john paul ii used to like to sneak out to go skiing once in a while. he said that he hopes that pope francis, our new pope from buenos aires, argentina will be able to sneak out once in a while to view a tango show. >> megyn: amy, thank you. coming up, left wing film maker michael moore is suggesting that pictures of the young victimssandy hook elementary school need to be shown of the murder scene and close-up of victims in a move that he says quote, will finish off the n.r.a., the new twist in the gun rights debate is next. after recent criticism of the president's leadership style the first lady told that the

commander-in-chief does not socialize more with republicans in washington because he is focused on his family. we'll take a closer look at who has been hanging out with the president. and an explosive day in court as the rape trial for two high school football players accused of assaulting a classmate officially begins. we are live in steubenville, ohio, a highly charged case that has captured the nation as kelly's court takes on one of the most controversial cases in the country today. >> the football team and a winning football team is not more important than the rights of a victim. >> rape culture has to come to an end, that's as simple as that. it needs to stop. . >> the world is watching, what else would you like to say? >> that says it all.

>> new problems for carnival cruise lines. right now, cutting short a caribbean vacation and flying thousands of passengers home.

the carnival dream losing its emergency generator while docked in st. maarten. difficult conditions on board, no power, elevators and overflowing toilets. passengers forced to leave the dream will get a partial refund, partial? and meantime, carnival is canceling the dream's next voyage next saturday and those passengers will get a full refund. and only a month where a fire on board left the triumph stuck at sea for a week without power. the left wing film maker michael moore is getting a lot of attention today with a controversial call to destroy the n.r.a. his idea, publish the brutal, disturbing crime scene images of the sandy hook elementary school shooting. in a new piece titled america, you must not look away, moore predicts this would tip public opinion against second amendment defenders and that pictures of 6 and 7-year-old

shooting victims are made public, the american people would cease to support the n.r.a. and its gun rights movement. lars larsen is a syndicated radio host and joins me now. lars, sorry, there's background noise, i hear at cpac, i know. >> yeah. >> megyn: but your reaction to moore's proposal? >> well, obviously, not a lot of michael moore fans here at cpac today, in maryland. but i have to tell you something, moore's suggestion is disgusting. and it's beyond a question of whether or not the photos should be be shown because they would violate the privacy of the families of the sandy hook victims. there's another question, moore simply wants to shock people into making changes in public policy that the congress does not want to do at this point. and then, awes see around the country, state legislatures have shown they're not willing either. >> megyn: that's his point, they're not willing to do it

now and something needs to inspire them to find the courage and he acknowledges that this would be horrific for people to view, but his point is, it's real, it happens, these poor children had in some cases 11 bullets in them and their bodies were completely destroyed and as awful as it would be for us to acknowledge what happened to them to actually have to soak that in, he says we need to do that before we can legitimately come to a decision on gun control. >> megyn, i don't think that michael moore speaks for anybody in this country because i don't think there is he' a parent out there who can't imagine what one bullet would have done to their child, let alone 11. and i don't think they need to be shocked with these kinds of photos to force them to change their minds about guns. the fact is, this country supports the individual rights of law abiding citizens to own guns and we also understand what happens when lunatics like adam lanza and others, take stolen guns and go out and commit awful crimes with

them. but telling those people we should give up second amendment rights to stop lunatics from doing it. it wasn't second amendment rights who put the gun in that man's hands. he murdered his mother, stole the gun, murdered the children, violated at least a half dozen laws by the time he got to the schoolhouse door and violated more by murdering the children. this is not going to be solved bypassing more laws. the country has plenty more laws that could be enforced and we probably have to have some new-- go ahead. >> megyn: he talked about the ar-15, one of the rifles and the ammunition, saying that the kind of ammunition used in newtown would have produced very extensive severe and mutilating injuries of the head and face of the small victims. with all due respect to the victims i'm repeating his argument and. >> understood. >> megyn: to talk about the mother of one little boy, noah who insisted that the governor of connecticut look at noah in his open casket so he could see his devastating injuries

and saying, i need it to be real to him, the governor, and the governor wept as he saw what kind of damage and violence and hell was unleashed on that little boy. lars, i know you have such strong arguments in favor of gun rights and-- >> right. >> megyn: could you maintain the case. >> megyn: could the case be legitimately made and people be open minded if they were to see pictures of little noah and the others? >> i don't think so. i think that the case, the case i-- i didn't mean to misspeak there. the case can be maintained for second amendment right of law abiding americans and people who are not lunatics like adam lanza and i read about the velocity and impact, foot pounds per force. and every rifle in america, the rifles that i use elk and deer are more powerful than the rifle that lanza used. the ar-15 takes a small 55

grain bullet that goes at a high velocity and suggested that somehow handguns which he doesn't acknowledge do the majority of the illegal murders in this country are far more powerful, far more devastating effect on people, but that's not the point. if you want to outlaw any rifle that delivers that kind of force to a human body then you're going to have to outlaw all guns, all handguns and all rifles and moore should know if he wants to play with numbers, he should understand that less than 300 people were murdered last year in america with rifles, more than 9,000 people murdered by criminals using land guns. and yet, the focus of this debate by moore and others is all on rifles. >> megyn: he talks about emmitt till, the little boy brutally murdered back in the 50's and how his mother insisted on an open casket and changed everything. that was the beginning of everything before rosa parks gave up her seat in montgomery, alabama and so on. and in any event, lars, thanks for a good discussion. >> thank you very much, megyn. >> megyn: com were still cheering the news

at st. peter's square yesterday when some media outlets were already out with reports attacking the new pope, as a friend of dictators, trying to tie him to a kidnapping conspiracy and suggesting he needs a big change of position on half a dozen social issues. clients are always learning more to make their money do more. (ann) to help me plan my next move, i take scottrade's free, in-branch seminars... plus, their live webinars. i use daily market commentary to improve my strategy.

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>> an explosive day in an ohio courtroom as the rape trial continues for two high school football stars accused of sexually assaulting a drunk 16-year-old girl. the emotionally charged case riveting the football frenzied town of steubenville, ohio and led to protests and national outcry against these defendants who maintain their innocence. prosecutors are now presenting their case, suggesting there were no heroes on the night of this alleged rape. mike tobin is live in

steubenville with more, mike. >> megyn, what the state has yet to do is to present evidence that the two football players had sexual contact with the drunk 16-year-old, consensual or nonconsensual. most of the testimony we've heard of this girl and her friend drinking vodka and slurpees, and stumbled around and getting sick and despite the infamous photo of her carried around. that along with the drunken ramblings of a teenage party goer have done a lot to fuel the case. he delights in the victim of the case and tells a tale of gang rape. and they're having difficulty proving the case when the bulk of the case hangs on the

ramblings of drunk teenagers. >> if today was an indication of how the entire case is laid out, they've got an uphill battle. >> reporter: now, under ohio law the standard for rape is met with hand to genital contact and that's the allegation in this case. now, because of that in part, the defense says there's no physical evidence, the state will have to rely on the testimony of the witnesses. no question, however, that that girl was humiliated, she was degraded to the delight of the party goers, to the amusement of the party goers, many connected to the football team, to quote the special prosecutor, they used her like a toy. megyn. >> megyn: mike tobin, thank you. the reports of testimony so far have been disturbing, talking how the girl and her friend had split a half a bottle of vodka, that she was slurring her words, she was the drunkest person in the room and there was a real question about whether she was capable of consenting to any

sort of sexual act that might, and whether the boys understood that. that's what's at issue in in case. now, this trial is raising questions about consent and whether she was capable of giving it or whether anyone who is drunk, as the defense admits that she, she had been drinking, is capable of consenting to multiple sexual acts at a high school football party. we'll have a fair and balanced debate in kelly's court. well, a troubling new report about some people who work for attorney general eric holder and suggestions that some within the department of justice are hostile to the idea of enforcing laws for some americans based on their skin color. that important story just ahead. plus, first lady michelle obama telling vogue magazine her husband does not do more socializing because he is focused on his family. we'll go to washington next on that. and the pedal to the metal

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but in a soon to be published interview with vogue magazine, first lady michelle obama explains the first couple does not socialize more in washington because they want to make sure that their, quote, family is whole. choosing instead to spend their free time with their young daughters. and joining me from a think tank and organization. and former advisor to president clinton, and marc thiessen from the enterprise institute and former speech writer for president george w. bush. simon, your thoughts on that. >> i have a lot of sympathies for the obamas and my wife works in the government and we made a decision in the beginning of the obama first term we both couldn't go into the government at the same time and be responsible parents and i think that i know that my most important job every day is not my work, but, you know, making sure my three kids come out all right at the end of the day and i have a the lot of sympathy for the obamas, i know when i get that text message from my son saying i got an 86 on a test

in the middle of the day, that's the most important thing that happens to me during the day. so, i think it's hard for families to find balance in the crazy society we live in today and i think we've got to give these guys a lot of space and they try to do what they think is right for the the country and the family. >> megyn: he puts that so beautifully and yet, i can see from the look on his face, he's not going to respond in a beautiful day. >> megyn, i can't believe you'd say that. i agree with simon, i have sympathy for the presidency. and i worked in the bush administration, and see the stress it puts on families, but put this -- while i have a lot respect for michelle obama. this is a ridiculous excuse for not reaching out to congressional republicans. and in his own estimate in the first term, president obama spent 600 hours playing golf yet the other day, paul ryan was on fox news sunday and said that his lunch with president obama the other day was the first time he'd spent

more than two minutes with the president since taking office and think about that. president obama, it took president obama until his fifth year in office before he sat down with the house budget committee chairman. that is ridiculous. so, here is the problem in a nutshell. 600 hours for golf, zero hours with paul ryan. >> megyn: we love a prop. that helps everybody understand. >> a good prop. >> megyn: so this is how it goes. >> it's a white board, i'm not karl rove yet. >> megyn: just a small one, but you opened a beautiful sentiment about family and your son and 86 on the test. marc jumped all over it, but had points, you know, you can reach out during business hours. >> yeah. >> megyn: and instead of golfing with your buddies, maybe you could golf with somebody on capitol hill maybe you could think you could make progress with. >> look, i think that clearly the president is acknowledging now, right, by what he's doing this week, that he needs to spend more time with members of congress, that he's got to roll up his sleeves and be a little more like lbj than the

way he was in the first term. and look, presidents, not everybody brings the same set of skills, i mean, president obama is a very thoughtful and serious guy, great order, you talk about that on the show quite a bit. and you know, the social side is not what animates him about politics, he's trying to broaden out and become a better president and responding to what critics are saying and recognizes he's he got to roll up his sleeves and spend time in congress. >> megyn: i think that's interesting, marc, so if the first lady is covering for her husband and saying, look, the reason he didn't socialize more, he wants to be with his family, if that's not 100% accurate, there was time to socialize and didn't choose to spend it with the republicans. maybe it's not because her husband has an aversion to the

republicans, but maybe he's an introvert, he's not a bill clinton, he doesn't feel comfortable doing that. >> how does that explain why in the weeks leading up to the sequester, and instead of sitting down with john boehner and the republicans, he was on campaign rallies warning about armageddon and trying to blame republicans nonstop and all of a sudden there's a charm offensive. simon sees the president growing? i he see a damage control. there's a poll that says 59% of americans think that the sequester will have no effect on them or that it will actually have a positive effect. and this is the most interesting part of that poll, by a margin of 44-42, they prefer congressional republicans to obama on handling the deficit. okay? he's losing the congressional republicans. the sequester was an absolute disaster and now all of a sudden he's mr. cooperative and having nice dinners at the jefferson hotel and meeting with congressional republicans for the first time since 2010, the other day on capitol hill. where was he before?

and let's see how long this lasts? because i think this is all about damage control. >> megyn: and very, very cynical, very cynical, marc. simon, i believe he's completely busted the balloon. but to be fair, the president has taken some flak-- we saw during the the campaigns, really with beyonce and with jay-z and harvey weinstein and george clooney and he golfed with tiger woods after the election and michelle obama skied in aspen and all this. they have a good time. it's fun to be president sometimes. who is that? who are we looking at there? it's sarah jessica parker, she looks very different and she resentsly said that high heels ruined her life, fyi to the women out there. >> not yours, megyn. >> megyn: i wear them for two hours on the set. he makes time for them, so why not paul ryan? >> so look, i think that these are thoroughly modern couple

who are trying to balance all of these rigors of being president and family life. i think as i said earlier, i think the president is working very hard now, right, to try to be more available to the members of congress that are here in town and that they, they are clearly acknowledging, perhaps he didn't do enough of that in the first term. so he's doing it now and thinking to something that marc said. he's going to continue to communicate to the public about his views. there's going to be an outside game and an inside game. he's got to do bet well to get the things he wants done this year done. >> megyn: if he didn't spend the last four or five years with his daughter now 14 and 11 and learning how to negotiate the republicans are in a lot of trouble. they're in a lot of trouble. what could hone your skills better than negotiating with a 14-year-old. >> there you go. (laughter) >> you need to be a jujitsu expert by now in negotiations. as a 14-year-old girl, i can

say that. gentlemen, thank you. >> thank you, megyn. >> megyn: we're getting new video this hour of an acrobatic show that went horribly wrong. when a safety net is not safe enough.new twist with the gripp photo from the gaza strip that made headlines around the world and shows the palestinian father cradling his dead infant child after what we were initially told by some media outlets was an israeli air strike. today, the israeli ambassador on the new and very different story behind this picture. and even before the cheers at st. peter's square die down, the jeers for pope francis in the media started up. reports attacking the new pope as a friend of dictators and wrong-headed on a number of social issues. they were still cheering, he was still waving. was this appropriate even before the new pope has actually come out with to view

the world as pope? ♪

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♪ >> fido could soon fall victim to an unintended consequence of the health care law, a veterinary is looking as what could cause the veterinary care go up. some instruments used on people are also used on animals. and the costs may be passed on to consumers, human or otherwise, at this point it's unknown how much your vet care may increase. aw! well, the celebration truly had not yet died down in st. peter's square last night when some media outlets were already attacking the new pope viciously. this is just one example of many.

these from the huffington website hours after they greet the cheering crowds. look at this, you see the bottom part, 76, and staunchly opposes abortion, conception and with murderous junta in priest kidnapping. and that was the headline i saw when i returned to my office. i was literally coming off the air to come back to my office from covering the pope and learning it was pope francis and that was the headline that greeted me on the huffington post. they're clearly not fans, but do they have an obligation in your view to respect the 1.2 billion catholics out there who wanted to just have a moment of appreciation? >> i think they certainly did, and you know, the fact of the matter is. take a look at the response as we get to the jewish community, muslims, protestants, it's overwhelmingly positive not just catholics. what are we down to, the same

familiar voices. i was struck by the new york times in hard news reporting on the front page saying that this pope has the same positions as benedict on abortion and gay marriage. well, benedict doesn't have any positions, these are the teachings of the catholic church. people can say on abortion and-- fine, find yourself another religion. life begins at conception, if you don't think that's the case, find yourself another religion. >> megyn: it's not a shock to find out the pope the leader of the catholic church is anti-abortion, anti-conception-- i mean, anti-contraception, not anti-conception, they're in favor of that, but anti-contraception and anti-gay marriage even though some of that latter issue is gaining more support than it had. >> go back to february the 11th and we track that and within hours of pope benedict xvi resigning the same people

who are out smashing pope francis were smashing benedict xvi, when i mean the same people, i mean the same malcontents mostly on the left, people who have their own agendas. now to make it it clear, i know a lot of ex-priests and semarians and ex-nuns, many wonderful people. unfortunately there's a segment of ex-nuns, and ex-priesses are living in the past, not able to move on and call themselves progressives and they're the first out of the box smacking pope francis. in one sense i'm glad, the mask is off and the guy hasn't had a chance to have a cup of coffee and they're out there. and we know the agenda is out there? and hasn't had the first holy communion. and cnn waited minutes before of talking about female priests be added to the order and cbs news their

correspondent talking about pope francis. >> he's also a conservative, and opposes abortion, supports celibacy and called gay adoption discrimination against children. he could not stop argentina from becoming the first latin america country for gay marriage and-- >> those in the mainstream media didn't go as far as as those online talking about the alleged conspiring with the murderous junta in the priest kidnapping and even gawker admitted there is no evidence, gawker, about as about far left as you can go. admitted no evidence to that whatsoever. but you have some going to the darkest places on this pope. >> it leaves the left in a pickle, doesn't it? he always talk about embracing the poor. you can't get a man who's outreach to the poor has been more genuine than pope francis. >> megyn: no he. >> the only thing the left

likes is sex and-- >> not just the sex. but the-- >> not just the left either. >> and i met three straight people like that, but the fact of the matter is, now they've got-- they're in a bit of a jam and can't say anything about the poor, like to smack him on that, but that's off the table and now to the sex again, he doesn't believe in abortion, two men getting married and big startling news. >> megyn: yeah, like none of the guys up for the position of pope were going to favor these issues, none of them. >> it's the teachings of the church. just as the church has a commitment to the poor not going to get a guy in there who is going to say the hell with the poor and not going to get someone there to say abortion is okay. there are certain teachings they can change and maybe they should change, celibacy for example, that could change, that's not a doctrine, that's a discipline. they can change that, but they're not going to change on abortion or commitment to the poor. i don't know why the people

keep pushing and pushing, do they think they're going to win the day with the catholic church. >> megyn: and the business of his protection and advocacy for the poor, you'd think more people would celebrate across party lines and here is one quote from him. i think back in 2007, the unjust distribution of goods persists creates social sin that cries out to heaven and limits the possibility of a fuller life for so many of our brothers. this is something we've heard many on the left say even here in this country and however, chose not to make that the headline. >> and the catholic church, i know some conservatives won't like to hear this, catholic church doesn't favor unbridled capitalism, it has to be tempered with a commitment to people and not just out for profit. that's a very liberal idea which is accepted by conservatives like myself. we also don't like the death penalty, but we don't also like the death of a child in the womb intentionally done. >> megyn: phil, thank you for being here. >> thank you. >> megyn: well, the arguments got heated in the senate today as the critical committee will

get ready to move forward with a sweeping new move on banning assault weapons. and highly paid federal internships apparently are not. new evidence na the crisis in washington isn't making a dent in some corners. i was cooking dinner for my family. all of a sudden, i was just wringing wet from head to toe. boom. heart attack. i'm a nurse and a care giver. never once did i consider that i might be having a heart attack. it can happen to anyone at any time. the doctor recommends bayer aspirin

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♪ >> well, most internships mean free labor. young people getting coffee, making copies and learning the ropes and frequently without earning one red cent, but that's not how it works if you're lucky enough to snag certain federal government internships. the same government that says it cannot afford to let the people visit the people's house is now accepting applications for highly paid

internships. trace gallagher has more, trace? >> yep, you want to go to the white house and go to the national park, you might be out of luck, but you're looking for an internship. it's jackpot. along with the past ten days along with posting thousands of federal jobs, they have also posted dozens and dozens of internship possibilities and these are not your coffee carrying internship possibilities, these are paid and now let's play a little bit of guess what the interns make. turning to the famous white board. nasa administrator charles bolden warned of dire consequences because of the budget, but if you have a b-average in college and you're a part-time student, how much was an internship at nasa pay? want to guess, megyn kelly? >> $30,000. >> reporter: nope, $83,000 for an internship in nasa. what about the national oceanic and atmospheric agency. if you want the weather

service, take a gander, throw it out there. >> megyn: 50. >> reporter: up to $62,000 for the national weather service. health and human services you know they're having public problems, you know they are, but you want to intern there. it's. >> megyn: 40. >> reporter: $61,000. and last but not least, you know the usda cutting back poultry inspectors and meat inspectors, plenty of interns. >> megyn: 60 bucks. >> reporter: no, per hour. >> megyn: 25. >> reporter: $24 per hour. >> megyn: all right. >> reporter: megyn, right. >> megyn: ding, ding, ding. >> reporter: you know what you get at fox when you intern here? you get like ten minutes in front of the teleprompter and kick you out the door with a tape. that's it. >> megyn: i know what you get, you get my lunch. >> reporter: that's right, you get coffee and megyn's lunch.

>> megyn: free help is hard to find. trace, thank you. >> reporter: i know, thank you. >> megyn: what i got when i was in college, bumkus. and one man wants his job back along with back pay. and why.

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>> fox news alert and breaking news in the debate over second amendment rights. a senate committee just passing a controversial ban on assault weapons. brand new hour here of "america live." i'm megyn kelly. not surprisingly the measure passed across party lines. ten democrats yes, eight republicans no. the discussion at times heated over this emotional issue. there was one particularly testy exchange between texas republican ted cruz and california democrat dianne feinstein who was the bill's sponsor. when senator cruz questioned over how congress could limit rights under the second amendment when the same lawmakers would never likely

consider a similar measure limiting rights under the first amendment or the fourth amendment. here is some of that encounter. >> this does not prohibit, you used the word prohibit, it exempts, 2,271 weapons. isn't that enough for the people in the united states? do they need a bazooka? do they need other high powered weapons that military people use to kill in close combat? i don't think so. so i come from a different place than you do. i respect your view. i ask you to respect my view. >> nobody doubts her sincerity or passion, but yet at the same time she chose not to answer the question that i asked, which is in her judgment would it be consistent with the constitution for congress to specify which books are permitted and which books are not. >> the answer is obvious.

no. >> megyn: steve centanni joins us live now from washington with more, steve. >> reporter: well, megyn, this is a measure no doubt head today oblivion, facing an uphill battle in the senate and sure defeat in the house. a revival of the ban on assault weapons reentered the dialog after the december shooting in newtown, connecticut that left 20 students and six adults dead. and he put it at the top of his agenda and a number of items, the assault weapons ban. the only likely to pass are enhanced security and background checks. the exchange over constitutional rights, here is more. >> the second amendment and bill of rights, the right of the people to keep and bear arms shall not be i am fringed and t fringed-- infringed. would she deem it for the bill of rights for congress to

engage in the same endeavor that we're contemplating doing with the second amendment, in the context of the first or fourth amendment? >> i'm not a 6th grader. senator, i've been on this committee for 20 years. i've studied the constitution myse myself, i'm reasonably well educated and i thank you for the lecture. >> reporter: the assault weapons ban would prevent the sale and transfer of 157 military style assault weapons and ban large capacity magazines that can hold more than ten rounds of ammunition. next up for the bill is on the senate floor likely to happen next month. >> megyn: steve, thank you. the truth is the courts have already upheld some limits on the first amendment and second amendment. they're not unlimited, but t question is how far should they be limited. and constitutional and legal. and the current bill and push for gun control, the last assault weapons ban expired in

2004. the current proposal goes above the 1994 ban, including requiring extra background checks and unlike the 1994 law, the current measure does not have a sunset date, meaning it would stay on the books permanently. well, also today, we're hearing the gsa, the government services agency? administration? one of those, administration, thank you. has been ordered to rehire a senior executive, paul prowdy is his name, who got booted after the scandal over lavish conferences for workers. you remember jeff neely in the bathtub, they're colleagues and. gsa argues, not neely, but his colleague prowdy that prowdy should have known about the spending, but an administrative law judge disagreed and ordered the gsa not only to give him a second

chance at his old job, but 11 months of back pay. and guy benson political editor for townhall.com, he's at cpac, we're getting guests from there today. and he wouldn't go down without a fight. i'm no jeff neely, i didn't know about this. yes, i was one of the four regional chiefs forced to resign or fired, but i have nearly 40 years at gsa, i didn't know about the expenses, i didn't approve them and you can't put this on me. >> reporter: that's what he said and he won that fight nor now, as you mentioned i'm here at cpac, this is a story that's low hanging fruit and red meat for the folks here to sort of mix a metaphor. and you had this guy who was in a chief managerial role, a poster child for waste and excess is not only back on the job, but 11 months of back pay.

as a conscientious taxpayer that's hard to swallow. >> megyn: but is it? what he's arguing is i realize that gsa employees and managers behaved very badly. well, jeff neely, he was not fired, he was allowed to retire. the bathtub man was allowed to retire with the bloody marys or whatever they turned out to be, and not fired, but prowdy had a different result and what he said was this is about the obama administration trying to make me a scapegoat to try to cover their own failures elsewhere within the gsa and i'm not taking it. >> yeah, well he was the former leader of the entire gsa and also the leader of that rocky mountain divisions that sent dozens of employees to the lavish conference, and almost a million dollars of waste at that conference. if there's not accountability at the top for the people in charge of these people, i mean, who is going be to be held accountable for that? i think that's a very serious question and by the way, he

was at at least one planning meeting for this conference. >> megyn: here they are, playing the ukulele on our dime, getting ready for the conference where they he get the commemorative coins and play with the mind reader and whatever else they did and we paid for. >> looks awesome. >> megyn: fantastic, if i didn't pay for it i'd feel better about it it. but he said they did not brief him of the details of purchasing and contracting and wasn't heavily involved in the planning. the question is, guy, does that excuse him? i mean, he was the last man in charge. can he get out of this by saying, i wasn't briefed on the stuff and similar thing from eric holder over at the doj on matters? >> right, well, megyn, the question of the judge obviously thinks so, but there's a larger political implication here, we got through weeks of fear and loathing over minuscule cuts to the government and here is an example of a huge government waste, a very prominent one that everyone can wrap their arms around and

there seem to not be that many consequences. right now behind me they're talking about benghazi and that's what the current panel is about, they were four state department officials supposedly fired over that massacre, that debacle and turns out they were shuffled around into new positionses and are still on the job. if you're one of the millions americans who lost your job in the last five years or so, you're probably sitting at home wondering what the heck does it take to actually fire a government bureaucrat? >> a lot. it takes a lot. guy, thanks for being here. >> obviously. thank you, megyn. >> megyn: coming up, we have an eye opening story about the media and the middle east. just a couple of months ago this powerful photo made international headlines. it shows a palestinian father cradling his dead baby after what we were told by the media was an israeli air strike. up next the israeli ambassador on the new and very different story that has now come out. and a scathing new report about the justice department's

civil rights division suggesting deep hostile divisions when it comes to the idea of enforcing the voting rights laws equally, whether the defendant in the case is black or white. whether the victim in the case is black or white. that's coming up. and a rape case that's divided a town and captured the country's attention. the two suspects are members of a high school football team, the team is the star of the town, it's what people do in steubenville, ohio and the entire incident coming to light after a video was posted online in which someone on the team seemed to be mocking a girl who he thought appeared dead. she was not dead, thankfully, but she is said to be the victim after rape and these are the two boys who say they're innocent of that alleged sexual assault. kelly's court takes a look at the case. [ kate ] many women may not be absorbing the calcium they take

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>> one eye opening story about the media and the middle

east. it started last november when this gripping photo from the the gaza strip made international headlines. it showed a palestinian father cradling his dead baby with a caption saying the infant died after an israeli air strike. now, a month long investigation by the united nations has it turned up-- turned up a very different chain of events. yesterday, i spoke with the israeli ambassador to the united states and ambassador michael orrin about the report. the united nations conducts a several month long investigation and concludes that in fact this childlikely died, he they can't say unequivocally, but this childlikely died thanks to palestinian rocket fire near that child's home and that this was not likely israel's doing at all. your reaction? >> well, first of all, it's the united nations, this is not an organization known for its pro israel stance. so the united nations is exonerating israel it says something.

the fact of the matter is, we are facing terrorist organizations whose goal is to kill the maximum number of israeli civilians and to create a situation where we may be compelled to cause harm to their own civilians so that they can then accuse us of war crimes. they fire rockets from inside neighborhoods, sometimes inside homes themselves. hezbollah and lebanon, hamas and gaza not only have a military strategy they have a media strategy. they know how the media works and now to exploit the media. they can drag bodies out of morgues and put them on top of rubble. they can grossly inflate casualty figures and they know that the media has a tremendous pressure to put these stories out front without checking them thoroughly and then we're left with the damage and this is a case in point, where the media quickly promotes-- posted this picture, this picture appeared on the front pages of newspapers around the world. it was identified as one of the iconic images of 2012 and by all appearance, it's a lie.

and it's a deliberate attempt to mediate the media, to make us look bad and to deny us legitimacy and the right to defend ourselves. >> megyn: and now, i mean, it's one of those situations where, you know, how do you go and put the genie back in the bottle? because "the washington post," for example, had this featured prominently. it played across four columns on top of its front page back in november 15th. and at the time, some were saying, why, why aren't they doing that with pictures of israelis who are huddling, trying to avoid rocket fire? why do they give this particular picture such a prominent placement and is it because that they wanted to advance the narrative that israel was killing palestinian children? and what will they do now that it's been proven, that their caption, which is the child died after an israeli air strike has been proven that that is believed to be untrue? >> well, they've issued an apology and we very much

appreciate that apology that retraction, but the damage has been done and the image has been created and it's not the first time this image has been left by the media. we had that experience in the 2006 lebanon war fighting hezbollah and 2008 and 9, fighting hamas and the gaza strip and last november the same thing. the failure here is to distinguish between a democracy, trying to limit as much as possible civilian damage, and terrorists were trying to inflict the maximum number of civilian damage not only on our side, but exploiting and in some ways actually encouraging civilian heir own side in order to wage a media battle, at least as important as the military battle. >> megyn: let me ask you about that, because the terrorists are going to do what they're going to do, but the media, we are supposed to try to get to the facts and the thing you referenced in 2006 in beirut and lebanon, that was a

reuters photographer that made the smoke look worse over beirut than it was. and he photo shopped an image and that guy eventually got fired. that's malfeasance. but this is something, i don't know, is it more subtle? do you think the media willingly wants to go along with a narrative that the israelis are the ones who are really to blame for the damage we see or do you think it's just a laziness which is they accept the propaganda put out because how are they going to get to the bottom of it without a lot of of effort before press time? >> well, there's a certain tendency to moral equivalencesy, which we find disturbing, again, we are democracy that was hit by 1500 rockets that were fired with a deliberate intent to kill civilians. and we conducted operations to defend ourselves, one-- one source recently said that israel has gone further than any other army in history to try to avoid inflicting civilian casualties and we dropped over 200,000 leaflets and we made 20,000 phone

calls, 22,000 text messages were sent to palestinian civilians, warning them to evacuate areas that were about to be struck so we could defend ourselves, now, we regard every civilian casualty that we inflict inadvertently on the palestinian site. we view that as a tragedy, as a failure, but in a warfare where we're dealing with ununiformed enemy firing from inside civilian areas, there are going to be civilian casualties, we regret them, they celebrate the civilian casualties they make and then they use the west, western media to exploit it in this way and it's very regrettable. >> megyn: the gaza based center for human rights says it still holds israel responsible for this child's death. and ambassador, thank you for being here. follow me on twitter @megyn kelly. a troubling report from the inspector general from the

department of justice, claims that the doj civil rights division holds a hostility towards enforces laws for certain americans based on the color of their skin. we'll take you inside that report. and next, a test drive like you have he' never seen before. a viral video of a nascar legend in disguise giving what looks like a car salesman the ride of his life. is this real? trace gallagher has the real story right after the break. ♪ [ fishing rod casting line, marching band playing ]

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>> well, this piece of tape went up on youtube a couple of days ago and got 7 million

views in two days. it shows nascar legend jeff gordon behind the wheel of a pedal to the metal prank. trace gallagher has the story. >> reporter: kind of like "candid camera" meets punked. everybody is in on it except for the used car salesman and the deal is jeff gordon you saw there, goes and gets makeup put on and goatee and the mustache and goes to the used car lot and plays the part of mike the mini van driver who just loves, loves the camaro. watch. >> mike, nice to meet you. so you gravitated to the camaro thinking of getting one. >> oh, no, no, way too much car for me. >> i think a way to really make you feel comfortable would be to put you behind the wheel. >> yeah, put him behind the wheel, all right. so the salesman goes to get the car keys and the guys are checking cameras on the outside of the car and jeff gordon has cameras on his glasses and in the can of pepsi max, and then they go

for the ride. watch this. >> okay, all right. and east up a little bit. east up. >> slow down, slow down, you can't go through that gate! (laughter) you watch it it's legit. this is all legit here and the guy doesn't know he's about to-- >> and keep going around and jeff gordon is putting him through the paces. this goes on for like four minutes, right? and the ride of his life. and again, the dealership knew about it and they set the car up, but the guy has no clue at all and the funny thing is this guy was the one to call the cops. i'm calling the cops until jeff gordon says, finally, okay, the joke is over, lets him in on this. >> i'm calling the cops. >> not what you think. >> i'm calling the cops! >> it's a prank, look, this is a camera, there's a camera, look, it was all just fun,

look. >> i'm jeff gordon. >> and then by the way, and tell, you want to go again. yeah, let's go again. >> pepsi max, 7 million hits on youtube and plenty of advertising and a pretty cool setup. jeff gordon, and a good sport. >> megyn: that guy did the right thing. he did the right thing. he was going to report him to the authorities, and was a good sport in the end. wow! >> and jeff gordon is quite a driver. >> it's hilarious as long as you're not in the passenger seat and it's not as funny. >> trace, thank you. >> okay. and coming up, a new report from the inspector general and the department of justice raising eyebrows in washington, suggesting that some in the justice department civil rights division are hostile to the idea of enforcing voting rights laws for all americans. we'll tell you what the report actually found and who it blamed next. and an explosive day in court as the rape trial gets underway for two high school football players accused of

assaulting a very drunk classmate. kelly's court takes on the most controversial case in the country right now in ten minutes. living with moderate to severe rheumatoid arthritis

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including tuberculosis. serious, sometimes fatal events, such as infections, lymphoma, or other types of cancer, have happened. blood, liver and nervous system problems, serious allergic reactions, and new or worsening heart failure have occurred. before starting humira, your doctor should test you for tb. ask your doctor if you live in or have been to a region where certain fungal infections are common. tell your doctor if you have had tb, hepatitis b, are prone to infections or have symptoms such as fever, fatigue, cough, or sores. you should not start humira if you have any kind of infection. ask your rheumatologist about humira, to help relieve your pain and stop further joint damage. >> and now to a big story in washington involving a lengthy investigation of the justice department. and claims that racial hostility is causing serious problems within the doj's civil rights division. the office of the inspector general just issued a 180-page

review of the doj and controversies within the voting rights division in particular. the ig's office has concluded that there is a climate of, quote, polarization and suspicion within the doj, suggesting some of the lawyers in the civil rights division harbor a hostility toward enforcing voting rights laws, depending on the victim's skin color. joining me now to discuss this is jay sekulow, and julian epstein, former house judiciary committee and staff director of the house government reform committee. glad to have you both here on this. the report is very lengthy and to some extent exonerates the doj on some claims from the the past and some condemns for things particularly in the voting rights division. i want to start with you, jay,

this inspection by the inspector general was in part, but not in full in the wake of the dismissal of the new black panther case, where the defendants were black and the complainants, the alleged victims were white. that was ultimately dismissed in large part, not in entirety, but dismissed in large part and led to all sorts of controversy. they looked into that. they looked into a couple of other cases where the defendants were black and the victims were white and voting rights cases and then they looked at the doj and voting rights of the civil division. not just under president obama, but under president bush. what was your take away. they're concerned about partisanship. they're concerned about the interpretation of the voting rights act that's not consistent with the legislation or legislative history. that there's been systemic problems within the department. when you look at the new black panther party case, the idea that you didn't enforce a violation for intimidation and

voter harassment because the people harassed were white is ridiculous, but that's the position that this assistant attorney general has taken. that is the position that the political appointees within that department have operated under and that's why the inspector general expressed a deep concern about that, issues, and the lack of not only cohesive strategy, but almost a reinterpretation of the voting rights act. what justice scalia said, got so much flak over it, the week before that, this being a racial entitlement program the way the voting rights act is being interpreted is correct by the nonpartisan report. he's saying that's the way it's interpreted and fear and intimidation in the department, if you've got a situation where there's the new black panther party harassing white citizens, no claim under the civil rights act, which is ridiculous and-- >> i want to take it beyond the new black panther case

because the viewers should know on that case ostensibly investigated by the ig concluding that the decisions reached were ultimately supportable on nonracial and nonpartisan grounds that actually had been concluded before in this case, however, they conclude that the circumstances of the dismissal, when you look at the larger context of what was happening in the doj at the time risked undermining confidence in the ideological enforcement of the voting rights law. and jay christian adams, the doj came out and interviewed with me shortly thereafter he quit in the wake of that case and how it was handled. he made complaints about that case, but he took it to another level when he claimed that there was this racial hostility within the doj when it came to how he we enforce our laws. i want to let you hear from him and then take it from there. listen to jay christian adams a couple of years ago. >> there is a pervasive hostility to bringing these sorts of civil rights cases.

i've worked on other ones at the justice department. i've worked on cases in mississippi. i've represented both black victims of racial discrimination, hispanic victims and in this case a white victim of racial discrimination. there's a hostility in the civil rights department toward these cases. >> megyn: do you believe that's been vindicated by the ig report? >> i do, you have to look at what the ig said about the bush administration office of civil rights and the obama administration. in the bush administration in 2009, the inspector general found that politics had infused extensively the hiring and the firing process. they found that there had been a culture of hostility where racist jokes had been tolerated. the office of professional responsibility had reported that the civil rights division under tnistration had violated the civil service laws because politics had gotten so involved in the hiring and firing and decision

making within that office. here, the inspector general has said that those problems have largely been cleaned up. maybe not entirely, but largely. with respect to political and hiring and firing, the inspector general says and i quote exactly that there is no evidence of any political or ideological bias. they said exactly the opposite during the bush administration. they said very, very specifically that there is no evidence of any selective prosecution whatsoever in this administration. with respect to the black panther case, this has been investigated and -- this has been elevated to mythological status at this point. it's been investigated extensively in a nonpartisan way. the republican member of the civil rights commission, abigail thermstrom said basically there's no evidence anybody was intimidated by the clow clowns, and batons. they looked at the handling of the case and said it was

handled appropriately and in this case as you pointed out the oig said, the inspector general eventually said the case was handled appropriately and not politics or racial considerations handling. there were no politics or-- >> i want to get to the other point because that's-- we move beyond new black panther. >> okay. >> megyn: this report is focused on where we are today with the doj and what's going on in the civil rights division. on jay christian adam's claim which he was pilloried we have to say. the hostility bringing civil rights cases when the victim is white, that's his claim and this is what the inspector general has found, that chris coates, jay christian adam's boss on the new black panther case who believables, he was called a klansman by some of the doj employees and the case where the victim was white and defendant was black, those who

fought and died for the voting rights act, somebody from doj, are rolling over in their graves, i'm sorry, but white people are not covered for a reason. this goes back prior to the obama administration. this isn't an obama-bush thing, but a doj supposed to be helping us all talking about how kirth attorneys in there were described by their colleagues as people who believed that the good ole days where everyone wears a white sheet and darkies say yes em, and a good ethical republican is an oxymoron, so all of that comes out and then we have this conclusion, i want to get to you on this, jay, from the inspector general, okay? polarization, this is within the doj, has been exaggerated by another factor, in recent years, debate has arisen whether voting rights laws that were enacted in response to discrimination against blacks and other minorities also should be be used to challenge allegedly improper

voting practices that harm white voters. disputes were ignited when leadership decided to pursue particular cases on behalf of white victims and more recently when division leadership stated that it would focus on traditional civil rights cases on behalf of racial or ethnic minorities. what do you take from that? >> well, i take exactly what the inspector general said. i think julian and i agree on this. there is an institutional incompatibility what the law is that you're not supposed to have racial discrimination in voting and voter intimidation and voter fraud going on, whether you're white, black, hispanic, asian, whatever it might be and that the job of the justice department is to enforce that neutrally. look, i've got a lot of respect for the department of justice. i've worked with the department of justice on projects and here is the problem and this is a significant problem, the law is not being applied in a color blind manner, which is what it's supposed to be. so you've got this

institutional incompatibility as if the institution is incapable of doing this alone or a neutral manner and goes beyond republican, democrat, conservative liberal. the law is the law and needs to be applied as such and that's really the problem and i think that's what the inspector general concludes. >> megyn: and yet, julian, another quote from the ig report because even though they acknowledge that there is this division among these lawyers about whether you bring the cases when the defendant-- and pursue the more traditional civil rights cases, they also say this, full screen 4, there is insufficient support for a conclusion that division leadership improperly refused to enforce the voting rights laws on behalf of any particular it group of voters. they seem to be saying, julian, they haven't done anything improper in getting to the place where this have this priority of enforcement. it's not improperly, but it's there. >> well, i agree with jay that these cases should be

respected neutrally and nonracially. the ig actually says more than the quote that you read. if you go on to read the sections that follow that, the ig says that there has been no evidence of any selective prosecution whatsoever. so, this case that jay is making when white voters are harmed, that the department of justice is selectively not prosecuting that case is directly contradicted by the inspector general. to your other points, megyn, i think you have to remember the inspector general says that politics and bias infuse the civil rights divisions office under the bush administration so extensively that the head of the office could have been prosecuted criminally because he lied to congress before the senate judiciary committee on that and further the ig said you had such a hostile environment inside that office that you had jokes, racist jokes oply tolerated. now, has that situation been totally correct snd no, there may still be some problems and jay may have a point that some conservatives within the

division have had inappropriate things said to them from final to time. >> megyn: that's the ig's point. >> and-- >> yeah. >> and the ig point, particularly with-- if you look at it in the totality of 2009 report, the ig report says while there may be some problems, it is vastly improved under the obama administration on virtually every measure, than the-- >> well, i'm reading from the report right now. the conduct that we discovered and document in this report reflects a disappointing lack of professionalism by some department employees over an extended period of time. during two, during two administrations. during two administrations. >> yes, and that's the-- i think look. >> megyn: i'll give you the last word, jay. >> and i think we have some-- i think julian and i really have agreement on this. the fact of the matter is unprofessional conduct within the department of justice whether you're a republican or democrat is unacceptable. racial slurs, racial epithets whether directed to white or black people not appropriate and not professional and we don't do that in the practice

of law. it's a systemic problem, hopefully it will get better, but again, the law needs to be defined in a neutral manner. and there's a difference between bad hiring practices and i'm not defending it, and application of the law. the application of the law. >> megyn: the report goes on and i've got to go. i've got to go, but-- no, i've got to go, but it leaves the viewer with, or the reader with the following terms, polarization and harassment within the voting section, and bitter controversy, and largely a function of leadership and culture, surprise and dismayed at what we found. and even the atlantic is now coming out, andrew cowan writing for them and saying, and i quote, this is unacceptable. eric holder cannot remain silent on this. gentlemen, thank you both so much for being here with your insights. >> thank you, megyn. >> thanks, megyn. >> megyn: all right, we're taking your thoughts. follow me on twitter @megyn kelly. the ability to make decisions while drunk or perhaps passed out drunk or near it. now the focus of a rape trial

involving two high school football players and allegedly passed out or close to it young woman. we'll debate whether anyone can consent to anything when she was reportedly so drunk she was dragged from party to party and what about the trial that is dividing a large football town and to some extent this country. kelly's court is next. >> i was born and raised here. >> it's a good town. >> divided the town? >> i think it has. [ male announcer ] this is betsy.

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>> kelly's court is back in session. on the docket today. three teammates expected to testify in the rape trial of two football players out of steubenville, ohio. the two defendants say the 16-year-old girl, said to be the victim in this case, consented to the sex acts. but prosecutors say the victim was so drunk, she could not speak and could barely walk on the night of the incident. this picture, one of many shared online after the

incident, stand by. other teens tweeting and texting about it and the question is whether this young woman shown being carried by her two alleged rapists, was in any condition to consent and could they possibly have believed that she was capable of consenting on the night in question? joining me now, david, and mark eiglarsh former prosecutor and now defense attorney. this is not open and shut case, i want to say that. the boys claim they're innocent and that she did consent and they have some evidence to back up their claim, but the prosecution's case is also strong. mark, let me start with you. how will they make the case that she, the prosecution, that she did not, could not consent and that these boys knew it? >> well, they first start with the photograph. i mean, she looks like in that photograph she has the same ability to consent as a sack of potatoes. but it's not just the photograph. you've got plenty of teenagers throughout the night who saw her and didn't say that she

was just slightly impaired, maybe a little buzzed. she was wasted. the words that they used were inebriated that she was the most drunk girl in the room. at one point she was sitting on the street corner with vomit next to her and her shirt was off. these boys allegedly were paying other boys to potentially urinate on her. they didn't, thankfully, but i cannot see how a judge can say that she had the ability to consent with all of these facts. >> megyn: another teammate who had the brilliant idea of the urination, he's not on trial, but gives you a sense what's going on this evening. this girl's friend testified they shared a half bottle of vodka, 16-year-old girls, and half a bottle of vodka just allegedly victim and her friend. and a drink of can of beer before she wound up with these boys. i mean, david, how does the defense establish she was in any condition to consent if that happens prior to the party and this girl was vomiting on herself at or around the time of the alleged rape.

>> sad case all the way around. they're going to have to establish that the defendants themselves had a reasonable belief based on the totality of the circumstances, what she said before the events, what she said during them, what she said of after the events, that she consented to the sex acts that took place, it will be an uphill battle no question about that, but remember, megyn, there was forensic medical examination done of this child, of this girl, that would involve nothing that ordinarily indicated a traumatic forceable rape. >> megyn: they're not talking about traditional rape, they're talking about manual rape, leave it at that. >> and that's the problem they have. no doubt about it. there's no bruising, no physical traumatic whatsoever. it's going to boil down to the credibility of each individual witness. it's a he said-she said classic as far as what-- >> is it, mark, let me get mark back in. a he said-she said when we have photographic evidence and witnesses even for the-- even who are giving testimony that's supposed to be he

helpful to the defense, all right, she wasn't passed out, but she was barely conscious and could barely lift her head? >> i thoroughly disagree with my friend david to call it a he said-she said. it's he said against a group of teenagers, all of whom throughout the entire night talk about just how impaired she was. she could barely speak. she couldn't even keep her head up and then the act itself, david. you have a girl who's passed out. and somehow, she consented to being digitally penetrated and worse to then be photographed as one of the defendant's did and placed around so the whole world can see, she consented to that act? good luck proving that, kids. >> megyn: how about-- >> and the standard is, did they have a reasonable belief that she consented, not whether she, not from her perspective. so, megyn, look, no doubt about it, remember, also, this is not a jury trial, so you can hang up one or two jurors and hope for a hung jury. this is a single judge in juvenile court and that presents a problem not being

able to appeal to any jurors emotionally or issues outside the scope of the law. this is a singular judge. >> megyn: listen, stand you by and-- hold on, we are going to pick this up on the other side and pick it up with what this alleged victim said before the party.

. >> all right. mark, as i see it one of the problems for the prosecution in this case is if they can establish, as they said in opening statements that they could, that the victim had told friends in advance she wanted to have sex with the players before she went to this party, that's not going to help? >> no, it definitely wouldn't help. i think, however, that even if she had a desire to have sex with them, but that at some point became so inebriated that she couldn't stand up, that she absolutely needed assistance, and she was vomiting, i don't think there's a judge in the

universe who would say she had the ability to consent at that point. >> megyn: isn't it more not whether she had the ability, david, but whether the boys understood that she didn't have the ability? >> that's true, but-- >> that's right, megyn, that's right, megyn. but look, the statements that she made before the party is huge and if witnesses corroborate that, that establishes her state of mind before she went there and carried over into the party. it's the perception of the defendants as to her consent, megyn, that's the issue and i've got to say it's just absolutely incredible that it boils down to a victim and this is going to be the star witness for the prosecution, a victim herself whose testimony won't be credible because of her state of inebriation. >> megyn: i don't think it's going to boil down to her. she's going to get up there and say i don't remember. i mean, the other witnesses who come in, one of the witnesses got up there and testified the alleged victim had said she was fine and did not need a ride back to an earlier party although she was slurring her words and stumbling, that's the kind of

stuff that comes in for the defense. here is the question for you, mark, does it come in, it wasn't just the two boys at the center of the controversy, the team and their reaction to the condition of this woman became the center of this story for a while. here is a teammate who wasn't there for the alleged act, but shown a videotape or saw the girl shortly thereafter and listen to his attitude about her. >> like if she wakes up-- >> i don't think that she-- >> and-- >> and he goes on and on, does that affect the judge? >> it should absolutely not. a judge, interestingly enough, who is the one who decides what comes into evidence and what doesn't, which means the trier of fact is hearing everything unlike the jurors, should be able compartmentlize. >> mark is absolutely right. that's where a jury would come in. it would affect a jury, no question. it shouldn't affect the judge. >> megyn: good debate and it's expected we may have a ruling on sunday, this is in juvenile

court. thanks for being here, we'll be right back. >> thanks, megyn.