gardens. killing off three of the older males. hopefully the rest of the flock will disperse. meat for the dead birds goes for lower income residents. >> i don't know about cute: >> interesting. >> "america live" starts right now. fox news alert news is breaking on the boston bombing situation with news that three more people are now in custody. in custody in connection with the deadly attack on the boston marathon. welcome to "america live," everyone, i'm megyn kelly. the news breaking a short time ago and new details are just coming in. we understand these new suspects, that is the term being used by law enforcement, were arrested by federal authorities and fox has confirmed that they are being accused of providing some form of help after the attack to the two main suspects in the case. dzhokhar and tamerlan tsarnaev. tamerlan is dead and

dzhokhar captured and in custody. we are now hearing that two of the men just arrested can can be seen in this photograph with their friend dzhokhar tsarnaev in new york's times square. can you see their faces have been unblurred for this photo. the photo is believed to have been taken back in april of 2012. tsarnaev is the one in the gray hoody the two men standing beside him with their faces unblurred are the new suspects, two of the three new suspects who are both citizens of kazakhstan. a source tells fox news a third suspect in s. an american citizen. these are live pictures from outside the federal courthouse in boston where we are expecting a press conference soon from an attorney representing those two suspects from kazakhstan and where they may be making their initial appearance as soon as this hour. we continue to await. we are told keep your eyes on the federal courthouse and therefore, would will. and we will bring you there when and if news breaks. first, however, our chief

intelligence correspondent catherine herridge who has had a busy afternoon. she is live in washington with the very latest. catherine. >> good morning, megyn. a source investigation confirms for fox news two men from kazak facing obstruction of justice charges. fox news was first to report on friday that the two young men who we confirmed are standing in this picture with dzhokhar in a photo from times square believed to be the spring of 2012 were initially held on immigration violations. one is a current student, the other a former student at u mass dartmouth where they met dzhokhar. after a sweep of apartment complex on the weekend of april 20th, five days after the bombing, a national security source confirmed to fox news that members of the fbi's joint terrorism task force wanted to question the two men about their actions after the 18th when the fbi posted this surveillance video of the bombing suspects and whether they took any action to help the tsarnaevs at dzhokhar's direction. fox news has learned that at some point after the bombings, when the

tsarnaevs were on the run the two friends of dzhokhar's went to his apartment and took some computers and other equipment. at some point thereafter it's alleged they tried to dump the equipment but it's unclear whether the equipment had any investigative value. right now we are waiting for the white house briefing and whether we will see comments from spokesman jay carney on this new round of arrests connected to the case. on friday just shortly after your broadcast, megyn the head of the house intelligence committee told fox news the source of the investigation was expanding citing persons of interest in the fbi case. >> it is is very clear when you take the totality of it that there was some outside counsel to these individuals on how to build and how to detonate. that's why that six months in russia becomes so important. and other persons of interest that i know investigators would like to talk to. >> fox news has also confirmed that the third suspect arrested in connection with to the boston bombings is a u.s. citizen. and he is allegedly described to fox as someone who also took steps to

block investigative matters in the case, megyn. >> megyn: catherine, do we know whether the fbi believes that these three helped these guys knowing that they were suspects in the boston marathon bombing? >> one of the key questions in our initial reporting on friday was whether there was some sort of knowledge --t they everywhere were examine much suspects. the joint terrorism task force wanted to understand where weather they took any actions at dzhokhar's direction. even if those actions were unwitting and when we spoke to a member -- former of the joint terrorism task force this morning, he said on a legal basis, whether they took the actions with full knowledge that they were suspects on the run or not, it was still a criminal matter in their eyes. so we will see if that is, in fact, the case when the documents are unsealed. but, again, what we have here are now three more individuals who are facing some kind of charges in connection with to boston, so the scope of this investigation is clearly

expanding, megyn. >> megyn: catherine back to you momentarily to the white house where the jay carney is taking questions on this matter we will go live. >> i don't know if he has. although i expect again we are just seeing reports. we have just senile reports and i can't confirm anything or get into charges that are written about in these reports. i can simply say that the president is regularly updated on developments in the investigation into the boston marathon bombings. but i haven't had a specific conversation about these reports with him. >> okay. i also want to ask about the f.d.a. decision yesterday on the plan b pill. is this something that the president sees as a compromise? >> megyn: back to the white house as they continue with news on other matters of the we will get back to them as they get back to the boston marathon bombing investigation which is emerging with new news today on a number of fronts. if you are just joining us now, three additional suspects have been arrested. believed to have provided some sort of assistance or acted in some way that the

federal authorities feel was illegal after the boston marathon bombing. boston police saying the public is not in danger. two of the suspects, citizens of kazakhstan. one is is an american citizen. and we believe that these are or were suite mates of the younger tar neff brother dzhokhar the one who is in federal custody right now. exactly in what way they helped remains to be seen. you heard catherine herridge reporting that it was understood or suspected that they took computers and other equipment and, perhaps, other evidence from dzhokhar tsarnaev's suite at umass dartmouth after the boston marathon bombings. were they hoping him dispose of critical evidence? these are two of the three who have been arrested now here on screen left. dzhokhar tsarnaev is the one on the right. and so there will be a question about exactly what they knew, why they did it, when they did it, and why

the federal investigators believe that they committed a crime. there are some reports out there now that they are also expected to be charged with lying to investigators. we have not yet independently confirmed that although we have reason to believe that the formal charges will be unveiled any moment now as we have been told to watch the federal court house. they could be making their initial appearance there momentarily. in the meantime, the fbi has been searching a landfill near dzhokhar's tsarnaev's college dorm room where he was reportedly spotted after the bombings and now we have reason to believe, perhaps they had -- they had reason to believe that some of these items had been discarded and wound up there. trace gallagher has more. >> and the fbi, megyn, spent two days searching these landfills, which by the way, 39 acres brings in about 250 tons of trash a day. the authorities never said exactly what they were looking for. as the early search began, the indications were they were looking for some type of receipts or any packaging from ammunition or other parts of homemade

bombs that were either used in the boston bombing or potential test bombs. then the reports came out saying the fbi was searching for a laptop that was tied to the suspect dzhokhar tsarnaev. suspects after the bombing went to dzhokhar's apartment and took computers and other equipment and then tried to dump it. there are reports the fbi is investigating whether the classmates may have threw away a knap sack at the request of one or both of the brothers. it is unclear as you see these fbi agents out there scouring in hazmat suits. unclear if they plan to go back and research part of that landfill, megyn. we have been told by the landfill if they come up with a date, a precise time of when the trash may have been dumped in there, they stand a much better chance of finding exactly what they are looking for, megyn. >> megyn: just to clarify what we said. dzhokhar tsarnaev was spotted at his dorm room on campus after the boston

marathon bombings. not at the landfill but they have reason to believe that there might be evidence there. trace, thank you. >> okay. >> megyn: coming up, we have much more on the breaking reports of new arrests in boston. later on, we will ask the homeland -- a member of the house homeland security committee peter king what he knows about these latest arrests and how they came about as his committee calls for a new hearing on what the marathon attacks say about the state of our nation's national security. in a post 9/11 world. also stay tuned. expert homicide detective former of the l.a.p.d. mark fuhrman he will fact check the president everyone did their jobs in the investigation of tamerlan tsarnaev long before he is said to have bombed the boston marathon. we will ask him about the breaking news that we're now dealing with right here in addition to alan dershowitz. don't go away. [ kate ] many women may not be absorbing the calcium they take

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>> megyn: fox news alert.

developing information on three new suspects taken into custody in the boston marathon bombing investigation. two men are identified as friends of the only surviving bombing suspect, dzhokhar tsarnaev. we have been told that they were suite mates of his at some point. one, catherine herridge reports, is a current student at dzhokhar tsarnaev's university. one a former student. there is is yet a third suspect in custody who is an american citizen. not much more to tell you on that person. these are live pictures here on screen left from outside the federal courthouse in boston where we are expecting a couple of events now. a press conference we're told from an attorney who represents one of the three suspects. taken into custody. and we are also told that two of those suspects perhaps all three could be making their initial appearance before a judge momentarily. we're told it is likely to happen this afternoon therefore perhaps we'll get a glimpse taken in. expect to hear from one of

the lawrts. lawyers. third person, northwestern citizen has not been named. that is all we can tell you about that third person. joining me now to discuss it with lis wiehl former federal prosecutor. now we are being told that the likely charge is obstruction of justice. >> obstruction of justice, exactly. that is also lying to the fbi during the investigation to find these two bombers. >> megyn: wait, wait, wait. lying would qualify as obstruction of justice. in that apartment. if that is true. going into the apartment, getting rid of evidence, for whatever evidence, going in and getting rid of evidence, that's obstruction. if they lied to the fbi while fbi was conducting this investigation, that's lying to a federal official, 18 -- 2001. that's another violation. megyn, they could pile up a bunch of these thidges at this point. >> megyn: are both of these a felony? >> yes, both are felonies. obstruction of justice carries a five year penalty. goes up to 8 with terrorism acts. which, of course, which would be. obstruction of justice carries a four year

penalty. >> what do you have to prove in order to prove obstruction of justice? do you have to prove they knew dzhokhar was suspected of the bombing and then they disposed of evidence or did something to cover it up? >> exactly. that's why the obstruction and false statements go together. because, when you obstruct, then you lie about it. so, did they knowingly go -- was it just they bumbled out let's go fix a computer? i don't think so. i think they were probably told, go in and get these computers out of there. that's obstruction. >> megyn: legally, do the feds have to prove that these guys janchts let me finish. >> okay. >> megyn: these guys disposed of evidence relevant to the crime, period? or do they have to prove they disposed of evidence related to this terrorist attack. >> it's intent crime. you have to show that they knew. it's not just somebody coming in and cleaning the apartment out. --megyn: yeah the made. maid. >> will they be able to -- cases like this all the time where you don't get on the stand i knew that i was obstructing justice. you never have that but you

build a circumstantial case. why would you go in there to this guy's house and take out his computers. >> megyn: reportedly they were suite mates of his. >> correct. still, why would you do that unless you knew that they were on the run and you were doing something to help your friends, to help your suite mates. the other thing that is really critical to my information if i am looking at this from a prosecutorial viewpoint is forget the obstruction and lying. now have a come to jesus moment inappropriate in this circumstance. tell me what you knew beforehand. forget about the after hand. what did you know beforehand? >> megyn: let's talk about that before i do get to that, let me ask you one other question, we believe right now after the bombings dzhokhar went back on to his campus and may have stayed in his suite perhaps with these guys: the old brother tamerlan may have gone back home with his wife and his 3-year-old daughter. however, catherine russell has not been yet. she is not -- we are told we know the third suspect is an american citizen. we are told it's in the

her. she is not being charged. just housing or harboring the guys isn't enough. you have to prove they did more. so the feds clearly believe they did something with evidence. >> you have to take that step. and if the feds believe that taking that step in this case going into that apartment and getting rid of trying to get rid of what they thought could be evidence, that is a step. not just talking on the phone as the mother was, you know, talking about jihad. it was more than that. if that's what they are charged with, then they think they did more than that could actually be even bigger, megyn, if they knew beforehand did they take an overt act even before the crime then that would be another charge. >> megyn: let's talk about what we know in terms of at least two. we have more information on the two from kazakhstan than we do on the third. we know that they -- we believe that they were arrested back on april 20th? >> 21st, i believe. >> megyn: so they were arrested back on -- i think it was saturday, april 20th. >> okay. >> megyn: they were taken in and questioned. and that was by ice.

>> immigration. >> megyn: administrative violation. that related somehow to visas, which could be something as simple as you weren't attending -- you are here on a student visa. you didn't go to class. >> right. >> megyn: does that sound to you, lis, like an excuse as of april 20th, saturday for the feds to try to get them into custody and start talking to them? >> absolutely. >> megyn: now they do. they release them. some time passes now today we see criminal charges -- >> -- right. >> megyn: is it your guess that when they had them in there they learned something, they were told something that wasn't true, perhaps. and now they have been sort of suring up. >> that's why the lying comes. in not just the obstruction much the actual act of going in there and taking the computer, that's the lying to federal e. what we are hearing is that potentially they had a plan that they were going to lie to the fbi. if they lie to the fbi in concert or even separately while they were being held or detained that's again

that 1001 violation. >> megyn: if they get charged with lying and we hope to find this out momentarily the initial appearance may be occurring any moment now and the lawyer is is going to hold a presser. if they get charged with lying, that is a very serious charge it says something about their state of mind. why would they. >> why would they do it? exactly. was it just out of friendship. roommates or suite mates trying to help that out that kind of thing or was there something to it? were they involved in something more? when i say lying to federal e, i don't mean just the fbi, it could have been ice. as long as you lie to federal enforcement while investigation is going on, that's that 1001 beef. >> megyn: is there any chance that this is bigger than after the fact and the reason suite mates with this guy and told a terrorist, hard to believe they knew nothing about it. possible. number two, look at this picture with them in times square with him april 2012, here they are in times

square, and what we were told on the night that dzhokhar tamerlan's brother was killed, they were heading to times square next to bomb us. that was second in their sights. i'm not saying that they were plotting this in april april 2012. ominous what we know now. >> that's what they have got to get from these guys now that's the big question if they were somehow involved turn them over to the police. obstruction from the beginning. a myriad of charges that could be possible here. look for today, there will be an initial appearance. >> megyn: what's going to happen. >> initial appearance which is, you know, in most courts kind of boring. be told they will be charged with one count of something, a complaint. >> megyn: a place holder. >> place holder exactly. hold them for 48 hours or movement probably not be bonded off because this is terrorism related. >> megyn: won't be released on bail. >> won't be released on

bail. they will be sitting there and get perchedz. >> megyn: one of them has a lawyer already. >> they will get the defender and then the next step will be the indictment and many, many more charges. here is what i am hoping when they get lawyered up like this as already of them already has is. a good defense lawyer should tell them for your own defense, for your own best interest in this case, a, come clean, and, b, if you did know anything before, let us know. i can bargain with that. >> megyn: right, get it out now. they are going to get to the bottom of. this especially when you have three of them, who comes in quicker. >> megyn: exactly right. >> megyn: hopefully we will get another look at these guys as they go in or out of the federal court house which we have been told to watch. lis thank you so much. our fox affiliate in boston is now at the federal courthouse. we hope to speak with them any moment now. our local affiliate reporters as we await both this initial appearance and a news conference from one of the lawyers now involved for at least one of these suspects.

plus, an n. addition to this picture we have been showing you our catherine herridge got hands on new pictures of the suspect. stay tuned for that more from the white house and detective mark fuhrman on the new turn in this case.

>> megyn: fox news alert. we are keeping a close eye on boston this afternoon. following the arrest of three additional suspects in the boston marathon bombing case. i want to update our reporting from earlier. we are now told now that they will be charged with not only obstruction but also with lying to federal investigators. those are serious charges, folks. they are felonies. and we'll find out exactly how those charges are listed and whether there are any others we hope momentarily. you saw pictures moments ago from outside the federal courthouse in boston. that's where we are expecting at least a press conference soon from one of

the attorneys representing, we're told, one of these suspects. we believe it's the suspect in the blue scarf. that's right next to dzhokhar tsarnaev there. we believe that that's -- that is one of the suspects who is already lawyered up and his name, bear with me is diaz carter baef. the other suspect is -- it's a tough one. tajayaka. bear with me as i try to get prenouns -- pronunciations. this photo we believe is from april 2012 in times square. tsarnaev again in the gray hoody standing next to him with the two guys who are now under arrest we're told both are citizens of kazakhstan. we believe that they were suite mates at one point or another of dzhokhar tsarnaev at u mass dart

mort darted dartmouth. we want to get to david lee miller who is live outside the courthouse. david lee? >> megyn, we're waiting here at the courthouse now for a hearing to take place that could involve as many as three new suspects arrested in connection with with the bombing of the boston marathon. to reiterate, to be clear, two of them have been identified. they are citizens of kazakhstan,. there is also a third suspect. he has not been identified. we are told is he a u.s. citizen. allegedly doing what officials describe as bad things. that's a quote, to hurt the investigation. boston police have emphasized that at no time was the public imperiled, that it appears these three were arrested in connection with with obstruction of

justice charges. things they did after the fact. after the bombing took place. bleeftd they may have gotten into the room of tsarnaev, dzhokhar tsarnaev and taken equipment such as a computer and other things that may have been helpful to police. destroying evidence hearing to take place 70 boston. having been. detailing these new charges against these three suspects. two of the three already being held on visa violations that came here as students from kazakhstan. they were arrested when they violated the terms of their student visas. now it appears they have far more serious legal problems to deal with. we expect to get more information in the next few minutes if not perhaps the next hour or so when this

hearing does take place. megyn. >> david leon the two. two out of the three. we are being told that ice officials went. they picked them up and there was a question about whether they were in this country legally at least right now. do we know why there were questions about that? have they overstayed their visas? do we have any color why they were here in an unlawful way according to ice? >> it's my standing kazakhstan citizens were picked up april 21st. apparently they had student visas and there are very stringent rules that you have to comply with given a student visa. authorities. one of these class as he was required to do and

therefore, we will expect to learn a great deal more about these two individuals. as well as this third individuals authorities say a u.s. citizen. megyn? >> yeah thank you. reporting one of these suspects. far left who was, i believe, that that was the former student at u mass dartmouth far left whose names we are showing. there is some report that he left the country and student status was terminated by u.s. dartmouth and yet we let him back in after that we are working to confirm that trying to get our arms around exactly what led ice to be so interested from them. keep in mind, they were arrested first by law enforcement, then ice took a look at them. and now we have federal officials having them in custody on criminal charges. what was the legal status? should anything have been

done about it. should these two been in the country to provide the assistance the feds say they provided to the man on screen right. a lot of questions to be answered. famed attorney alan dershowitz is here. stay with us. [ male announcer ] this is kevin.

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>> megyn: fox news alert. we are keeping a close eye on boston this afternoon following the arrest of three additional suspects in the boston marathon bombing case.

we expect the attorney for one of these men to hold a news conference at some point soon. it may happen any moment. sources tell fox news these new suspects in custody are believed to have helped the two main suspects after the attack. possibly on thursday evening into friday. remember the fbi released the videotape of the two on thursday evening around 5:00 p.m. and didn't know their names. and then by friday morning, they did and we saw, you know, they had had a shootout on the streets of boston and so on. next hour we will talk to pete king chair of the subcommittee on counter terrorism and intelligence. we'll find out what he knows about these latest arrests when he joins us live. also, want to get back to our chief intelligence correspondent catherine herridge live in washington. and now we are told that it will be on destruction of justice and lying to the feds that these two are going to be charged with,

of these three. >> reporting where we are told. for several days fox news was looking at these two young men from kazakhstan. they came to our attention because of this fbi ensweep the weekend of april 20th near the u mass dartmouth campus. what we confirmed through a national security source shortly after that raid on the 20th, the two young men from kazakhstan, you can see them there in the picture with dzhokhar. they were taken into custody on what amounted to a holding charge it was a relation -- violation of their student visas. violation of the immigration statute. this was hold them because members of the joint terrorism task force wanted to question them specifically about whether they took any actions after april 18th. april 18th was the day that the fbi posted surveillance video of the two suspects that they wanted in connection with the boston bombings. and they wanted to understand whether these two young men had taken any action at the direction of dzhokhar to help them once they were on the run.

a source familiar with the the investigation told fox news within the last two hours that the charges would be on destruction of justifiable charges and that it's alleged that at least one of the men was asked by dzhokhar to go back to his apartment and pick up some kind of computer or package and dispose of it. it's not clear to us whether he successfully disposed of it whether that's in any way connected to the fbi sweep of that garbage dump in the boston area in the last few days. and whether there was anything of investigative value. but, again, these two individuals had been on fox news radar for over a week with the reporting friday that they had been picked up on what's pretty standard a holding charge so that the jttf could question the men about those actions they immediately took after that surveillance video was posted. and then the third suspect is not in this group. it's an american citizen, we're told. >> megyn: are these the two that had the cars with the license place terrorista.

>> diaz had a car based on reporting leased by two individuals and had one of these vanity plates terrorista number one and the father told one of the russian news services this is simply juvenile humor or a joke but it certainly doesn't sit very well given the circumstances today. >> megyn: all right, catherine. get back to you as you have more. thank you so much. >> you are welcome. >> megyn: mike fuhrman former l.a.p.d. homicide detective and fox news contributor. weave know these two had some sort of help after the fact. the extent of the help, nature of the help we don't yet know. we are told two of these folks from kazakhstan had some sort of immigration violation. and for some reason they chose, according to the feds, to help this suspect out and then lie to investigators as we believe an indictment will unveil this afternoon, mark. your thoughts. >> well, megyn, when you look at the time line here, we have two of these individuals that are

arrested on ice violation or arrested by ice on immigration violation. this is before the fbi had the opportunity to actually talk to the suspect in custody after he came out of, you know, his medical treatment or he was able to actually talk or respond to questions. so, they committed themselves to some statements then. i wonder if information that they gleaned from the suspect during that first 15 hours of interrogation led them to have the knowledge that he instructed one of these individuals to destroy his computer. and let's use some real common sense here. nobody said get i rid of my couch. nobody said get rid of my refrigerator. he said get rid of my computer. now, what value would that have? certainly his brother is already dead. if they only had themselves involved in this, in other words, communication between his brother and himself, his brother is

dead. he is in custody. the value of that computer is information that goes outside of that circle. >> megyn: let's be realistic because as you point out, these two were said to be suite mates. at least at one point of dzhokhar tsarnaev. one of them was no longer a u mass dartmouth student. that may be because his student status had been revoked. we are looking into that. but they -- so they know this guy. they know him well. thursday afternoon, on the day the fbi released those pictures, they were everywhere, mark. they were everywhere. these kids live in boston. they go to school in boston or at least were living there. so, are you telling me their lawyer is going to come out and tell us moments from now that they had no idea when and if dzhokhar called them on thursday night and said could you get rid of my computer, which it sounds like that's what the feds are going to tell us, they went and did it, not to mention earlier reports that we had confirmed reported that they had been searching that landfill for parts of homemade bombs. so, if these guys go to the

landfill or go to the garbage dump and dispose of the guy's computer and parts of the alleged bombs. now they are going to try to tell the federal investigators, huh, what? we had no idea it's going to be tough. >> it is going to be tough, megyn. college kids are just a tad bit lazy and they are not very sophisticated. they took the computer and threw it in a trash can probably in front of the residence nor short distance of there. so, they said they threw it away in a gee graphic area. and then -- geographic area. that garbage has subsequently been dumped at the landfill. they didn't go out to the landfill and destroy it but, you look at this information. we have a learning institution where the younger of these two suspects attends college. where is everybody in that school -- that everybody attended a class, every professor that had him in a class, everybody that spoke to him, where are all those people? and but these suite mates

or roommates of the suspect certainly lied to the police about probably the first lie would be have you talked to him prior to or after certain dates. they had cell phone records, of course, that was proved to be a lie. then they asked him did they say anything to you about the bombing that could be another factor that he did brag, that he did say something. then it's aiding and abetting after the fact. once they lie to the police and the fbi about the computer, now they are involved in this. now, there is something interesting about the suspect in custody. if he didn't divulge this information. in other words, the fbi and boston ph.d. and the task force learned of it, in another way, in other words, flipping one of these three individuals, and dzhokhar did not tell them during that 15 hours of interrogation, i think the attorney general should basically say your possibility of us believing

you and anything else is nil. the chance of you eliminating the death penalty is nil. we don't real little want to talk to you anymore. >> megyn: we will learn much more, we hope, when the attorney for one of these suspects hold a presser. he has previously said the guy didn't do anything wrong, was innocent, and feels terrible about what happened in boston earlier last month. mark fuhrman, thank you. lots of news breaking this hour as we continue to await a press conference from the federal courthouse in addition to, we believe, the initial appearance of, perhaps, all three of these new suspects. right after the break, we will be joined live by alan dershowitz one of the best known criminal defense attorneys in the world and a harvard university law professor. he joins us live from copley square in boston with his thoughts on what this all means and where it is going. new car!

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>> megyn: fox news alert. awful eyes are on the federal courthouse in boston as we await the initial appearance, we believe be of the three new suspects believed to have provided some form of assistance to the two main suspects in connection with with the boston marathon bombings earlier last month. joining me now alan dershowitz one of the most famed and best-known criminal defense attorneys in the world and harvard university law professor joins us live from copley square. good to see you again. now we're being told we should expect obstruction of justice and lying to

investigators. we will know shortly. your thoughts on what we have seen so far? >> i think we learned several things from these charges. number one, it again confirms this was not a plan where there was an escape thought through, that the bombers, particularly the young bomber who survived needed to make a call to friends in his dorm to get rid of evidence. this shows the lack of careful planning. it also seems to show that the government doesn't have any proof that these three new guys had any knowledge or information prior to the bombing or during the bombing. what we are talking about is a coverup, basically. what the government will have to prove and i think they will have no problem doing it is that these three knew or should have known when they were asked to get rid of computers that they were obstructing justice. also, they have been charged, apparently, with lying to federal agents. that's the easiest case to make because there is no transcript. there is no warning. there is no oath.

if you just say anything to government agent that's a lie, you are guilty of a crime. now, what we don't know is whether the government is really interested in going after these three or really squeezing them in order to get as much information as possible about the two bombers and whether or not they can give them any leads to whether the bombers knew anything or whether the bombers were in contacts with anybody in russia about the bombing itself. that's what we don't know. >> megyn: it's hard to understand as a law-abiding citizen why you would, you know, allegedly take a phone call from your suite mate saying get rid of my computer, which is, you know, where we expect the feds are going with this on the night that they have plastered his picture all over the national airwaves as a suspect in the boston marathon bombing and say all right i will do that could there be more charges against these guys if they

knowing i assisted someone they knew was a suspect in the bombings? >> yeah. they could be charged with accessory after the fact. and that way hooked in a little bit more to the conspiracy itself. but i don't think, on the basis of what we now know, there is enough to make them coconspirators in the bombing. now, that would be very serious because if you are a coconspirator in the bombing, you are responsible for the deaths and you can be essentially found guilty of murder. but if you are an accessory after the fact, you are not responsible for any of the acts that preceded it but both your moral and criminal guilt is very considerable if you help people knowing that they were trying to avoid justice for having killed and injured so many people. >> megyn: i want to pick it up with you after the break. so much more to discuss on where this case is likely to go now and whether we're going to see federal public

defenders step. in one of them has a private attorneys. we believe two of them have private tornsz. we don't know about the third. i want to talk that with you as well as the citizenship as well after the break. thank you so much. uh, i'm in a timeout because apparently riding the dog like it's a small horse is frowned upon in this establishment! luckily though, ya know, i conceal this bad boy underneath my blanket just so i can get on e-trade. check my investment portfolio, research stocks... wait, why are you taking... oh, i see...solitary. just a man and his thoughts. and a smartphone... with an e-trade app.

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>> megyn: welcome back. await federal court three new suspects in connection with the marathon bombing. we expect them to be charged with at least obstruction of justice and lying to investigators as well. alan dershowitz continues as our guest. the lawyer one of the suspects rejected from the university no longer a student at the university has spoken out on this matter before. before today saying that these guys are shocked. they are horrified. they can't fathom something like this and said that they did not see dzhokhar

tsarnaev in the days before or after the bombing. i mean, does that tell us anything about what the likely defense here is going to be? >> well, i think that the lawyers are to have a chance to confer with their clients and find out the truth. i mean, one of the allegations is that they may have lied to federal authorities about whether they did or didn't see them. very likely they may have lied to their lawyer as well. so, we have to get to the truth of this. now, one of them already has a private lawyer. none of the three can have the federal public defender because they're conflicted out. they have a conflict. they are already representing the alleged bomber and there might be one testifying against the other. we don't know whether these other two have enough money to hire their own lawyers or whether a lawyer will have to be appointed. i think their basic defense is going to have to be, if it's true, that they didn't know these were the bombers at the time they disposed of the material.

that's going to be very very hard for a jury to swallow. and as far as the false statements are concerned. they are going to have to basically claim they will didn't realize they were false or they were not really fast i doubt this will go to trial. use these indictments to squeeze these defendants into providing as much information as possible, deport the two that are not citizens and probably make a plea bargain with the one that is a citizen. >> megyn: alan dershowitz thanks so much for being here. the charges will be obstruction of justice and conspiring to make false statements. and had them show. we learned a lot of us have known someone who's lived well into their 90s. and that's a great thing. but even though we're living longer, one thing that hasn't changed:. ♪

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>> megyn: fox news alert. breaking news out of boston, we are now told to expect not guilty pleas when three new suspects appear in federal court, which you are seeing right here momentarily. at least two attorneys for two of the suspects speaking out about the expected answer to these charges. brand new hour here of "america live." welcome everyone, i'm megyn kelly. moments ago we learned from the federal officials that the charges will indeed as we have been reporting include conspiring to obstruct justice and making false statements. both are felonies. all this happening as we learn that the house homeland security committee planning to hold its first congressional hearing on the april attack and what it says about our post 9/11

security. right now, there are so many questions about who these three new suspects are and what exactly they did according to the fed to help the tsarnaev brothers cover up that alleged attack. that's what we believe so far. no reason to believe at this hour that they are accused of helping them carry out the attacks in the first place. tamerlan tsarnaev is dead. he is believed to have been the mastermind behind the boston marathon bombing. his younger brother dzhokhar is being held at a federal medical detention center. we are hearing that two of the newest men arrested, okay, because those are the two as you know that tsarnaev brothers who did the bombing, according to authorities. three new suspects arrested. now, two of them appear in this photograph we believe with dzhokhar in new york's times square in april of last year. about one year ago. tsarnaev is the one in the gray hoody on the right. the two men standing next to him with their faces unblurred said to be the new suspects.

our david lee miller joins us by phone. is he at the courthouse in boston with the very latest. david lee? >> megyn, let me paint the picture for you at the federal courthouse here in boston. federal helicopter hovering overhead. four police officers standing outside the courthouse, very visible and more than a dozen microphones set up waiting for statements from attorneys. this now as three suspects are being charged in connection with the marathon bombings here in boston. as you mentioned, they will likely be charged with conspiring to obstruct justice. giving false staples. two citizens from pakistan. azam at tazhayakov and diaz kadyrbayev. third suspect designed as a male. we do not the have identification yet. third suspect arrested for allegedly doing and i quote doing bad things to hurt the investigation. we expect that they are going to have a court

appearance here in the next few hours, if not sooner. and lastly, we have heard from police officer richard donahue today the transit officer in boston, critically wounded during the shootout that took place. he had cardiac arrest, massive blood loss. he issued a statement saying i cannot begin to properly thank everyone involved in my recovery. i'm not awake, moving and talking and telling jokes. i'm able to walk briefly through the use of a walker. so there is some good news today. richard donahue, the transit officer critically injured continues to recover. this now as we await the court appearance, three more suspects in connection with the investigation into the bombing of the boston marathon. megyn? >> megyn: all right, david lee miller, thank you. we will be back to you as you get more. just moments ago the white house spokesman took new questions about this matter. he had said at the beginning of our show that he had not yet spoken to the president about this but that the president has been regularly updated on the boston marathon bombings. he was asked about how the

fbi has handled the investigation up to this point. here is that. >> so, the president feels that the fbi has handled this case from the moment of the bombings through the successful capture of the individuals believed responsible and through today very well. >> megyn: joining me now by phone one time chairman of the house homeland security committee and chairman of the subcommittee on counter terrorism congressman peter king. congressman, great to have you back on the program. i want to get your reaction first to the breaking news we have had today on these three additional suspects. >> megyn, i want to give law enforcement tremendous credit for this. it shows that this investigation is ongoing. it shows that may be more ramifications to the case people thought at the start when they thought it was just two lone wolves. today's charges don't

indicate that they were involved before the bombing but on the other hand, if he trusted them enough to call them, afterwards, to dispose of evidence, to get rid of the evidence or to obstruct justice, it makes you wonder what they knew about him beforehand. if they knew it was jihadist connections. i think that with the pending charges against them, that's very good bargaining leverage for the government. >> megyn: the reuters news service is reporting that they are suspected not only of destroying and concealing the boston marathon bombing suspect's backpack i'm sorry laptop computer but backpack and there had been a question about what was in that backpack and why they disposed of it you have heard from your sources on this, congressman, and you can comment at all on the nature of the current charges? >> basically, i have heard what you are reporting. that's going to be obstruction of justice. there is going to be lying to federal officials.

and they were really suspicious from the start, which is why they held these two on the immigration violation. if you call they picked them up and let them go and picked them up the next day on the immigration violation. the third personal i believe they were aware of, the u.s. citizen but wasn't enough to hold that person on charges until today. but also the fact that, you know, two of them it appears were in times square. you wonder did they overhear any conversations about jihad? why would he have called? he in many ways created the crime of the century as far as boston is concerned. one of the most wanted men in the world and yet he felt confident enough to call them up and ask them to destroy evidence. put yourself in that position. i heard you mentioning before, you know, it's hard to get a law-abiding citizen to do something criminal anyway but on this one where it was a massacre boston massacre. they were willing to carry this out and he felt confident enough to call them and ask them to do it. >> megyn: reuters not yet

independently confirmed by fox the charges say these three new suspects decided to throw away tsarnaev's backpack after learning he was a suspect in the boston marathon bombing. i mean, as i was discussing with mark fuhrman realistically that's the only way it could be given the nature of how their faces were everywhere, congressman, that thursday night, and, you know, it would have been tough, especially if you are living in boston as a college student to not have seen this guy's picture and recognized that he was wanted and then you get a phone call saying, hey, how about my backpack? i mean, do you think that this goes beyond the two who we believe actually conducted the bombing and the three who now are alleged to have helped cover it up? >> you know, my standing is there are other people still looking at. obviously the wife or the widow is certainly being looked at. and, you know, i believe there are others that are at least being looked at. it may turn out not to go anywhere. quick to find three other people involved so soon

and, i think if they're willing to cooperate any way to give any type of evidence, i think this could well expand. it's hard to believe that these two carried out this operation by themselves. this was a sophisticated, coordinated bombing attack. the bombs were put together perfectly. to he me there had to be practice runs with these bombs, did nobody know about it? was there no involvement by anyone whatsoever? that's leaving aside any overseas element. i'm just talking about the boston area. again, it's too early to say anything definite. it was also too early to say anything definite the other day when we thought there were going to be other people arrested. now we do have three people being arrested. best thing this is definitely an open investigation. the fbi following it. >> megyn: you were on the homeland security committee and, therefore, this is an appropriate question for you in particular. the immigration status of these at least two of the three new suspects, we're told the third san american. but these two who we see in this picture here next to dzhokhar tsarnaev up in

times square last year, they are from kazakhstan. we are told they are in the country on student visas. picked up by ice two weeks ago on alleged administrative immigration violations and now we hear that one of them, diaz kadyrbayev, i think it's the one in the blue scarf. i'm not sure. it's one of these two. diaz kadyrbayev is no longer enrolled in u.s. dartmouth. the question what he is doing in this country on a student visa and whether he should have been here to provide the alleged assistance to dzhokhar tsarnaev to begin with. >> again, i don't know if that's accurate. it may well be. this is ongoing problem we have with universities where we have students here on student visas who turn out not to fulfill their obligations as students and, yet, no one reports them or turns them in and they basically are living here illegally and that is something that has to be addressed, i think in any immigration bill and also should be addressed right now because, you know, you can't come over here on a

student visa and not be a student or not, you know, be a full-time student or be a student under the terms of your visa conditions. so, that adds, again, another dimension to this if we're talking about ways to prevent these types of attacks in the future. >> megyn: congressman pete king. thank you very much for being here. we appreciate it, sir. >> thank you, megyn as always. thank you very much. >> megyn: we will learn more when these suspects appear in court. we are getting our first look at the affidavit filed in support of the charges. i'm going to bring that to you right after the break. and we'll break it down exactly what it means. what it tells us and what it doesn't as it has been filed by a special agent with the fbi who now details the specifics of why these three have been taken into federal custody. these two on screen left and a third person. plus, after the break, new reaction from the administration and we will speak with a massachusetts lawmaker who is now taking some heat after she complained about the

tsarnaev family getting more than $100,000 in taxpayer help and says she was then threatened by the governor's office. stay with us. busy hour.

>> fox news alert, we are now getting new reaction from these arrests that we have seen. the new reaction come from washington. i am poring through this affidavit as i sit here on the set. there are fascinating details in here. here is just one example talking about how on april 21st, the fbi searched tsarnaev's dormitory room. this is the younger brother dzhokhar pursuant to the search warrant seized among other things b bs, a large pyrotechnic, a black jacket, a white hat and so on. two days before the fbi executed that search, these two suspects from kazakhstan arrested today removed items from tsarnaev's dormitory room. the name of the new suspect, the third person who we had not yet confirmed according to the fbi affidavit is robel

felipeo charged with making false statements. a quick review of the is being charged with false statements. other two charged with obstruction. bear with me as i read through this live on the set and confirm that more thoroughly but they say that all three of the new defendants were interviewed during this investigation. all three admitted that on the evening of april 18th, they removed tsarnaev's backpack from his dorm room and the two from kazakhstan have admitted that they agreed to get rid of that backpack after concluding from news reports that tsarnaev was one of the boston bombers. there is much, much more. i want to get live to wendell goler because we want to get the latest on reaction from washington. wendell? >> well, megyn, as you noted at the top of the hour, press secretary jay carney wouldn't talk about the latest charges. in fact, he couldn't say whether president obama had been briefed by his counter terrorism advisor who has

kept him regularly updated since the explosions. he did address critics who said mr. obama was hasty to conclude the tsarnaev brothers were self-radicalized though none of the three people arrested today is believed to have known beforehand that the attack was coming. here is a little bit of what carney had to say. >> even if we posit that it may seem at this point, basissed on the information that has been gathered and produced and reported on, that it looks as though these might have been self-radicalized individuals. you know, that's supposition that has to be proven through the investigation. >> the president said yesterday the fbi and department of homeland security both did what they were supposed to be doing. he said local law enforcement officials performed an exemplary fashion. his critics warned against assuming there was no foreign involvement in the bombings and officials are now, in fact, following the tracks of tamerlan tsarnaev who was killed in a fight with police a few days after the bombing during

the seven months he spent in russia and dagestan last year. questions have been raised about the u.s. response rank from russian authorities about that tsarnaev but the russians felt he was a threat to them and not to the u.s. and u.s. authorities found no contact with extremists in this country, now they are looking at whether he was radicalized by chechen separatists when he he went to dagestan. there are indications he met may have met with a couple extreme i.ists. one in may of 2012 and another in july, just before tsarnaev returned to this country. the tsarnaev brothers' parents have denied their sons were responsible for the boston bombings but have yet to come from russia to claim the elder son's body. megyn? >> megyn: wendell, thank you. again, poring through this affidavit i want to bring you more color of what they are saying happened. on the night we all remember that thursday after the boston marathon bombings which took place on monday, april 15th, and they released this video, the feds did, asking for our help.

they say that one of these newest suspects kadyrbayev, diaz kadyrbayev texted dzhokhar tsarnaev said you look like the suspect on television. tsarnaev text lol and joked you better not text me and come to my room and take whatever you want. and that happened between 8:43 and 8:48 p.m. eastern time that night. it goes on from there i'm going to bring you more of the details. first i want to get live to massachusetts state representative sean o'connell who joins us now. we originally reached out to her because she took some heat after drawing attention to the taxpayer benefits given to the tsarnaev family but i want to get your reaction to this breaking news that three more people are under arrest in connection with this crime. >> hi, megyn, sorry about that glad to be here. >> megyn: i wanted to get your reaction to the breaking news that three more people now charged with helping these two suspects after the fact.

>> yes, three more people. two of them at u mass dartmouth which is very concerning that these people that are related to the terrorists somehow are at one of our colleges here. and i am really pleased to see that the law enforcement is working so hard and so aggressive to on all their leads and all their evidence and aggressively pursuing everyone involved. meg mig i want -- >> megyn: i want to ask you about the benefits issue. the family the mother of the two main suspects tsarnaev brothers blamed america for everything. sees america did everything they could to give them a soft landing in this country, to provide asylum for them. provide welfare assistance for them and reportedly over 100,000 at least in benefits to them. you asked some questions about and this wondered why you can be on a terrorist watch list like the tied list and get public assistance and say that you got a nasty phone call from a very senior member of the governor's office. can you tell us about that?

>> yes, i did, megyn. i have been fighting for welfare reform here for two and a half years in massachusetts. it has been an uphill battle. when this story broke and we found out that these terrorists were receiving taxpayer funded welfare benefits, you know, people wanted to know what were they receiving? were they eligible? how long were they receiving it? and the information was not forthcoming. and our governor actually came out and said on tv that they have privacy rights and he has to follow the law and protect their privacy rights. well, our governor has history of not following some of our laws and he picks and chooses which laws he is going to follow, megyn. and they don't tend to be the ones that benefit the taxpayers and people that are here legally. we passed a law to say that you must have a valid massachusetts photo i.d. to register a vehicle here in massachusetts. and he has totally disregarded that law. so, i said, you know, they need to release all information on these terrorists and not protect the rights and privacy of terrorists over victims and

taxpayers. and i guess they did not take too kindly to that statement. >> megyn: what was the phone call you received? >> well, the phone call was that i shouldn't be saying inflammatory words like that and, you know, this is a sensitive issue and i should not be talking like that. my reaction was this is is a very sensitive issue. we should be caring about the victims and the taxpayers and giving them all of the information possible and not going on tv saying we have to protect the rights and privacy of terrorists because that is what the administration said when they first came out. and if there was not public pressure to get this information out there, we wouldn't have this information right now. you have to stand up to the status quo to get what you want and get the information you need. >> megyn: representative shawna o'connell what a day for your weeks. what a few weeks you have had. thank you for taking the time with us today. >> we have. thank you, megyn. >> megyn: getting more details now. tsarnaev's roommate let these three people into tsarnaev's apartment saying he had left a couple of hours earlier.

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>> megyn: they noticed a backpack containing fireworks. the fireworks had been open

and emptied powder that's when kadyrbayev knew that tsarnaev was involved in the marathon bombing. kadyrbayev decided to remove the backpack from the room in order to help his friend tsarnaev to avoid trouble. he decided it take tsarnaev's laptop because he didn't want his roommate to think he was stealing or behaving suspiciously by just taking the backpack. then it goes on to allege that they then -- these three then collectively decided, quoting here from the affidavit to throw the backpack in the fireworks into the trash because they did not want tsarnaev to get in trouble. put it in a large trash bag with some other trash. threw it in a dumpster and so on. it is incredible the detail that is laid out here about how very badly these two, on screen left. wanted to help the man on screen right after they knew he was a suspect in the boston marathon bombing. as they believed dzhokhar tsarnaev, their friend, had

killed three people, including an 8-year-old boy and maimed 200 plus others. what did they do according to the feds? did they rush to call the fbi and say we think we know who it is? no. according to this fbi affidavit, they rushed to conceal evidence, to throw it away and try to protect their friend. still poring through it as is catherine herridge. she is going to join me moments from now with even more details. i'm on page 10. it goes on for 15 pages. there is much more in this thing as the police and fbi tells us 14 badges exactly what they believed these three have done. we are getting more information on the elder tsarnaev brother said to be the mast err mind that's what they believe now. the older brother tamerlan died with a gun fight with police more than a week ago. these three are in the college dorm room watching

movies and destroying evidence. tamerlan tsarnaev's residence have agreed to claim his body after his american wife katie russell tsarnaev declined her right to claim it as surviving spouse. >> now the medical examiner is ready to release the body of tamerlan tar neff. at least three family members have come forward saying they would claim it both sisters have claimed they will claim the body and then arrange a funeral, possibly in boston the uncle of the brothers called them losers saying he is willing to claim the body. he contacted a mosque shortly after tamerlan was killed in a shootout and remember that imam later came out that saying, no, no, he would not be buried in a boston mosque. remember, the parents had once said they would come to the united states and claim the body but, of course, they remain in russia. and certainly the wife, catherine russell wants nothing to do with her husband saying the body should be released to the

tsarnaev family. catherine russell clearly still under investigation, including trying to match her d.n.a. to d.n.a. female d.n.a. that was also found on the bomb, the medical examiner says it will release the cause of death once the body is claimed and it's important to note that under muslim law it requires that a dead body be buried as soon as possible. tamerlan's body has been at the medical examiner's office for well over a week. megyn? >> megyn: trace, thank you. as i'm listening to you with one ear i'm reading the affidavit with another. here is an interesting footnote. when they went over to dzhokhar tsarnaev's dorm room and retrieved the backpack along with other items, they saw a jar of vaseline in the room and kadyrbayev told the other suspect azam at tazhayakov that he believed he had used to vaseline to quote

make bombs. footnote 1. tazhayakov eating a meal about jehovah and kadyrbayev, dzhokhar tsarnaev had explained to kadyrbayev he knew how to make a bomb. that's the conversation these three were having one month prior to the boston marathon bombings on april 15th, 2013. march -- march 15th or so that they sat around talking about how dzhokhar knew how to make a bomb. when the boston marathon bombings took place, these two will say to their lawyers they had no idea it was their friend until they saw the videotape released and then when they did according to the feds they rushed over to his dorm room to not only hide, but destroy evidence. these are serious charges. they will deny them, we stand, we expect a not guilty plea. and then the system will play out as it normally does. we are going to go through this whole affidavit. i'm not done yet.

i'm on page 11. catherine herridge has been going through it as well. as has our legal panel. that's next. [ male announcer ] this is betsy.

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>> megyn: fox news alert. we are keeping a close eye on boston this afternoon three additional suspects in the boston marathon bombing case. we are waiting for them to appear in federal court. we are told it would happen within the hour now. as we wait for that, we are getting new details about how these arrests came about in a fascinating

affidavit filed by the fbi in support of the federal charges, which include obstruction of justice. it looks like for two of the suspects and lying to investigators for the third. our chief intelligence correspondent catherine herridge has also been going through the document. all of us have just received it so bear with us as we try to bring you the very latest details. catherine? >> several things jump out at me from the affidavit, megyn. i think specifically that the three suspects agreed to dispose of dzhokhar tsarnaev's backpack as well as a computer after they had already determined that they believed that he was one of the boston bombing suspects. and there are two other key data points here. that they saw immediately after the bombing evidence in the dorm room which would connect to the boston bombing. so this is before the videotape of the suspect was released. this is the empty fireworks cartridges as well as the vaseline. you rightly cite the footnote from one of the fbi agent interviews where they say about a month

earlier dzhokhar indicated to them he knew how to build a bomb. several key data points here. perhaps first and foremost that they took these actions. these were acts of not omission but commission. they were deliberate ballot and they were done according to the affidavit with full knowledge that they were aiding an individual who they themselves believed to be one of the boston bombing suspects and that they had found evidence in the apartment before that surveillance video was released that said to them that bomb making had occurred in that suite, megyn. >> megyn: catherine, thank you so much. >> you are welcome. >> megyn: joining me on the set is arthur aidala and jona same pedigree. they saved the best for last in the paragraph in the affidavit. they say that the law enforcement agents did recover the backpack and that is something that we did not know before today as they searched that landfill for days. they found it.

it says they recovered tsarnaev's backpack from a landfill in new bedford where they believed it to have been dumped by the service that removed garbage from the carriage drive. it was partially enclosed. inside that backpack, agents recovered fireworks, a jar of vaseline, and a u mass dartmouth homework assignment sheet that is from a class in which tsarnaev is enrolled. they found, according to them, the evidence that these three it looks like tried to dispose of. i have confirmed now in having read this they believe that the first two from kazakhstan azam at tazhayakov and diaz kadyrbayev, they are the ones charged with obstruction. the third one is the one charged with having lied to investigators repeatedly, arthur. they talked to him and he doesn't remember being there. i don't remember being there. and i might have been there and then finally a full confession to the fbi

affidavit. >> according to the law what's going to happen now. even though they are going to go into court and plead not guilty imminently. two of them have confessed. the one obstruction of justice, basically this affidavit is primarily based on their statements. >> megyn: the third guy robel ultimately confessed. >> looks that way. his is a lot shorter. only two paragraphs. he is saying that they got to the room where the evidence was and it was locked and they didn't let him in and he knocked and he knocked and they didn't let them. in the other ones came clean off the bat and said we recognize them, we went to the room, we saw the backpack. there were fireworks. the fireworks were open so you could see the gunpowder was out and would knew that they made the bomb and, therefore, as you said, so perfectly you find out that your friends killed a bunch of people and instead of picking up the phone and saying hey, man, let me help you out to the cops, to the authorities. >> megyn: they rush over to the dorm room. >> and try to destroy. >> megyn: take and destroy

evidence. you know, they have got them. if this is true, then they have got them because they admit to taking the backpack and dumping it. then they find the backpack in the landfill. >> full of evidence. >> megyn: this one guy philipo first interviewed denied. then remembered going. changed story they remembered going to the dorm room and didn't remember doing anything. finally in the third interview he repetaed those statements in the fourth interview he confessed he had lied to the agents. he is in more trouble for lying. >> four times? >> megyn: or is it equal? >> you know, here is what i think is going to happen. the element of knowing, whenever you have obstruction of justice charge, the element of knowing is where the defense is really going to try to pick up some sort of momentum. they didn't really know. that element is proven by this affidavit if we take what is in here is true. this other philipo lied four times what i predict is going to happen to him. they are going to make an argument this might be a false confession because

the cops shook him down four times. we don't know how many hours over these four interviews did the fbi interrogate this guy? >> megyn: this guy philipo didn't understand because these other two were speaking russian. they are from kazakhstan. the footnote tells us that the other two had been with dzhokhar tsarnaev a month earlier. they had set off fireworks and that he said, dzhokhar said i know how to make a bomb. arthur, how hard are they going to be looking at these guys for some knowledge of the planning of this terror attack prior to april 15th? >> very hard. i mean, it seems like reading this affidavit they have done a lot of great work here. law enforcement has. they have really drilled down what is interesting is what the defense will be for the guy who had to give four statements. they will say that it was -- they were compelled to give those statements. and just so the viewers -- it's crystal clear what he is charged with we now know is like the martha steward charge. is he charged with just lying. you cannot, federal law

enforcement officer asks you your date of birth and you give them a wrong date of birth that is a crime. punishable up to five years in prison. that's what he did. they asked him what happened, he lied once, he lied twice. it will be interesting to see when they indict him whether they indict him for the three separate incidents where he lied. three different charges of lying to a federal law enforcement officer or just one. >> megyn: how about. >> hinge chat game. >> megyn: go ahead. >> if they find that there was evidence that before the fact any of these guys knew what was going on, then they are going to be charged with conspiracy. >> megyn: don't you find it coincidental that their first -- jumps out at me that first instinct upon seeing face on the tv after a month earlier he said he knew how to make bombs a s. to say that's dzhokhar, let's go cover it up. their first inclination that their friend a terrorist see it on tv. first reaction is let's cover it up. that suggests you can argue that they knew prior that there was reason to suspect him. >> that they were trying to protect themselves because they knew what was going on. that is a game changer if the fbi can prove that.

>> megyn: their lawyer, the lawyer for one of these guys, diaz kadyrbayev who appears from the fbi affidavit coverup and backpack and laptop and so on. i don't know for sure which one is diaz and which one is azam at, but the lawyer for diaz kadyrbayev came out earlier when ice picked him up and said he is shocked and horrified. he fathom that his friend could do something like this. really? really? i mean, you guys now have been on both sides of it. you have prosecuted cases and now you defend not these guys but guys like them. how do you go in court and defense against if your client has spoken to the fbi we went over there and took the black pack and laptop and put it in the landfill. they find it in the landfill. >> people need to understand any criminal defense attorneys pull rabbits out of a hat. that's not true. many times you go in there and throw yourself on the mercy of the prosecutor.

it's not even the judge. it's real lit prosecutor. in a case like, this megyn, not going to be too much mercy. these guys are in major, major trouble under the law the judge can give them a little less time in prison than the maximum by confessing their guilt and not making the government have the cost because it would be enormous of going to trial. instead of them doing five years they behalf do like literally four years and 9 months. >> megyn: if they know something more than they told us about prior to april 15 then they have value, they have something to offer that could help them in their current criminal case. >> yeah, they absolutely do. they are going to want to avoid being charged with conspiracy. they will be taking the heat for murder. three of the four counts at the very least. so, you know, i think it's very important to find out when they knew, what they knew. >> megyn: are they going to plead today. >> he this will plead not guilty today at their arraignment. not guilty. they are going to want to know -- the fbi is going to want to know whether these guys can help sew the case

shut. it's it's not already are sown shut. >> thank you so much. much more right after this break. don't go away.

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>> megyn: fox news alert. three new suspects charged in connection with with a boston marathon bombings are to appear in court within the next 40 minutes we're told. i think it's going to happen at 3:30 eastern time

according to the latest information charged with obstructing justice and/or lying to investigators after the fact in an attempt to cover up dzhokhar tsarnaev's alleged participation in this crime as we get more from the federal courthouse, we will take you there live. we want to squeeze in this one other bit of news that we have for you on another important story regarding another terror attack on a u.s. consulate in benghazi, libya from 9/11 of last year. stand by. >> we are unaware of any agency blocking an employees who would like to appear before congress to provide information related to benghazi. both state department and the department of defense have made clear that they are not aware of any requests for a security clearance for a private attorney having been made in connection with the benghazi investigation. so what you have is an attorney saying she represents somebody, claiming that she is not getting the security clearance, and, yet, the agencies involved have no information about that at all.

so, you know, which falls into the broader story here, which this is -- these allegations are part of an unfortunate pattern of spreading misinformation and politicizing this issue. >> megyn: that was white house spokesman jay carney about an hour ago responding to reports that this administration is preventing some survivors of the benghazi terror attacks from testifying before congress and from having meaningful consultations with heir own attorneys. you heard him accuse an attorney of spreading misinformation. that attorney joins knee now. it's victoria toensing. former chief intel committee. she handles a lot of these whistleblower cases. she has got at least one state department employee who wants to talk to her fully, who wants to testify before congress and for whom she says she cannot get the security clearance in order to have that meaningful discussion. victoria, your reaction to mr. carney. >> well, megyn, let me give you an update. today, i received a letter and fox had it, dated may 1st, from the state

department to chairman issa that says oh, we routinely give clearances all you have to do is go to the office of the assistant legal advisor for employment. and the legal advisor's office. and then you can pursue it. they didn't provide any contact information of course. i called the legal advisor's number and got the main number and said who is this person and please give me the number. they gave me the name of ann joyce. i called the number, it was a bit after 12:00 and there was a voice mail. nobody was at home. so, i had my office again call at 2:00 and nobody was there. it was a voice mail and i checked with my office right before i came on the air and they have not heard back from this place where the state department sent me. >> megyn: i want to talk to you about this. >> there you are. >> megyn: i have read the letters that darrell issa sent to the state department saying please provide the information on how we can get the security clearances for lawyers such

as yourself who are representing state and cia employees who want to talk about benghazi. yet, they seem to have flow knowledge that issa wrote those letters. i have to pick it up with you after the break. hard break on the other side. have known someone who's lived well into their 90s. and that's a great thing. but even though we're living longer, one thing that hasn't changed: the official retirement age. ♪ the question is how do you make sure you have the money you need to enjoy all of these years. ♪ the question is how do you make sure you have the money you need as well as they could because they don't take it with food. switch to citracal maximum plus d. it's the only calcium supplement that can be taken with or without food. my doctor recommends citracal maximum. it's all about absorption.

>> megyn: victoria toensing can back with me now. rerepresents one of the state department employees who survived the benghazi tear attacks and knows about them and wants to talk and cannot until clearance has been given. what's going on victoria. >> they are stonewalling. the state department says this administration is so used to being able to not answer any requests by congress. i think it surprised them all of a sudden pressure is being put on. how you can believe that a letter written april 16th and then by darrell issa, requesting this process and then again another letter

to the secretary april 26th, nobody responded until today? this simple letter that came out today could have been written april 17th. why did they do that? because they always have been able to get by with it. that's why. >> megyn: now the press is calling attention to. the issa letter. >> finally. >> megyn: to the department of state says attorneys representing department personnel in this matter will require clearance to possess top secret information. please provide the top information how they can get it, what your regulations are and so on. the state comes out yesterday and says look, we are not aware of any employees requesting security clearances and if we get those requests we have a process in place. what's the process? >> megyn, that's a very important point, because it's the lawyers who should get the clearance. why are they asking for this employee to come in and expose herself or himself and say oh, i'm going to be a whistleblower, will you help me get my lawyer? that should not be. you have practiced law, megyn, you know that, the lawyers should go in there and get the clearance and say okay, here is my

client. >> megyn: that way people know who they can go to. final question because we have short time thanks to the breaking news. but do you believe that now you'll get the clearance and your client will be able to speak with you freely and fully? >> are you kidding me? i can't predict anything. i can tell you this. i'm not giving up. that, i will assure you. >> megyn: i want to tell the viewers that lindsey graham sent a letter along with senator mccain calling on president obama to release to congress the names of all the benghazi survivors that would at least be a starting point. victoria toensing my apology for the short time. what a day of news we have had. thank you very much for being with us. we'll be right back. okay, team! after age 40, we can start losing muscle --

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>> one of the most incredible things from this f.b.i. affidavit, according to this, tsarnaev never asked them to remove the evidence. they just did it to help their friend. thanks for watching, everyone. i'm megyn kelly. here is shepherd. >> shep: continuing coverage of breaking news. police have now confirmed the new arrest in connection with the boston terrorist attack, the first arrest in nearly two weeks. three more suspects now in custody. according to the court papers, the prosecutors say two of the men decided to throw i way a backpack belonging to the younger bombing suspect, dzhokhar tsarnaev. a backpack containing fireworks and a laptop computer. the third and new suspect accused of lying to investigators. attorneys say at least two of these new suspects will appear in court 30 minutes from now and will plead not guilty. here you can see the new suspects standing in "new york