swimming champion esther williams has died at the age of 91. she was really famous for her movies like neptune's daughter, and she became the biggest money maker for hollywood at that time. >> that's going to do it for us. america live begins right now. have a great day. fox news alert. major developments in the perjury investigation of eric holder this afternoon. we just got our hands on a letter from the house judicial airy committee that he appear and answer questions about whether he lied under oath. this news just breaking. the chairman joined mow moments before we came to air in a pretaped interview. and i will have that for you and show it to you in just a bit right here. but he confirmed to us that the committee now wants eric holder to come back before congress to explain what it views as significant discrepancies

between his sworn, may 15 testimony to congress, when he said he'd never even heard of the potential prosecution of a reporter for doing his job, which they do not think squares with the fact they named james rosen a co-conspirator. this push to have him reappear before congress comes receipt after he faced a hard morning of questions. we've got the very latest. >> the attorney general is taking heat from both sides of the hill today, including word that the house judiciary committee is calling him to testify e it is not a subpoena yet, but a formal request. members were not happy that he refused to answer their questions. instead they got a vague insulting letter from another justice official letter. they said not good enough.

well, after last night's deadline for a response from holder he himself did send a her basically saying what that other letter said, that was accurate. just moments ago, republicans responded with yet another letter. we do not believe our request that you provide the committee with an on the record explanation of your on the record testimony is extraordinary. we believe the committee and the american people deserve to hear from you directly. and with that, they set the date, june 10th, 10:00, for him to come back and explain why he had never heard that, and yet signed off on a search warrant. today holder faced the senate where republican richard shelby asked him how he would rate his own performance of late. >> i go through a self-evaluation process almost on a daily basis. i'm always trying to do better. some of the criticism that has

been labeled or thrown at me and at the department has caused us to rethink. for instance, the way in which we're going to deal with these media inquiries, and we'll make changes. >> and he did pledge during his testimony this morning that as long as he is attorney general no reporter will be prosecuted for doing his or her job. the ball's now back in the attorney general's court. we'll see how he responds to that request for his presence on june 10th. >> it was never a question about whether he was prosecuting james rosen, it was a matter of him getting records without notifying james rosen. he had to call him a criminal to get the records without ever notifying him. it's not whether somebody has actually been prosecuted, that hasn't been done. all right. thank you. another fox news alert. angry fallout amid the reports that the feds are spying on millions of americans. but is that the accurate way to

characterize this story? the news first broke as part of an exclusive report in britain's newspaper. it was requiring verizon to hand over customer call data. the so called spying began on april 25th. the nsa is currently collecting the phone records of millions, over 100 million, of verizon customers. a ton of information. on average a billion calls are connected by verizon every sinkle day. that collection is going on and will throughout july. verizon is forced to turn over the numbers of both parties to the call as we as specific information, the call duration and the location of the parties, where you were when you made the call or received the call. the administration has defended the grab as being something

allowed by the patriot act, but moments ago, the man who wrote the patriot act spoke to us and suggested that the administration may have gone well beyond the law here. >> this is a big deal, a really big deal, because the business records sections of the patriot act were tee signed for specific investigations against specific individuals. i would see nothing wrong with targeting the phone records of somebody who is suspected of terrorism, but everybody who either sent or received a call from a verizon phone and maybe the other phone, cell phone providers, that was never the intent of the business records section. >> he went on to say much more. again, that full interview on the topic of what the nsa is doing and what eric holder needs to do now to satisfy lawmakers. that comes up in our next hour.

in the meantime, i am joined by our ding tal politics editor. and so we have eric holder now facing renewed algations of perjury. he cannot satisfy these lawmakers because he has not yet answered their questions directly. he keeps talking about how he's never engaged in a prosecution of a journalist. he knew in his head he'd already gone into court and accused james rosen of being a criminal. on the heels of that and the irs has been targeting political opponents of the president and on the heels of statements that we found to be untrue about the white house about its role and the state teept's role in benghazi and the talking points there, we find out that the nsa has been collecting information

about hundreds of millions of americans and torring them, there as a question about whether they're allowed to to that, the scope of the information, whether it was legal and so on. and all of it boils down to trust, trust between the america government and the people and their president. >> you are rocking and rolling. i'm back on my heels down here. you got a lot going on today. the trust is it. but let' not miss the significance of jim sensenbrenner who is no dove, who is, who has been a staunch defend irof the patriot act, one of the authors of the patriot act, someone who was decried by liberals as a tool of the bush authoritarian regime, et cetera, et cetera, et cetera. for that guy to come forward and say that was overbroad and not conducted appropriately is a big boom. what that tells us is, the

republican whose generally like the idea of the government being able to capture terrorists. they're for that as a party. they've been for that for a while. for republicans this requires a little soul-searching, and have you hair republicans say this is wrong, that means that the president who is already in very bad trouble is going to be in really deep trouble. >> it's confusing, because you've got this morning dianne feinstein, a top democrat, harry reid, the top democrat in the senate saying this is no big dial, this nsa story. then you've got jim sensenbrenner saying i wrote it. i wrote the patriot act. i'm telling you this is a potential big deal. we need more answers on what was done and why it was done. and the business records exception, it was never meant to be used in this fashion. so the whole world is now standing on its head. >> and if you think it's just verizon, come on.

if you think -- >> right. >> if you think they went and found a judge who said you can have these 115 million phone number, but they never went and asked about at&t or cricket or whoever else all down the list, you know they went and got them all. >> sprint. >> that just stands to reason. >> that's a little more familiar than cricket. >> cricket's still around. the democratic complaint, the people from harry reid in the bush era was that the bush administration was being too harsh in targeting and profiling individuals for this extra scrutiny, that they were sends agents to mosques. that they were being uncool with muslim americans, that they were not offering those protections to those americans in an overzealous effort to prevent troshism. the solution in the obama era is

to take everybody's stuff a little bit, for every american. so maybe democrats are okay with this. because maybe this is their solution to profiling in the bush era is to take it from everybody instead of just some. >> letty ask you about this trust. quinnipiac did a poll, would you say barack obama is trustworthy or not. in 2011 he had an over 20% swing in his favor that they believed he was trustworthy and honest. look at it now. it's dead even. 47% say no i do not believe that. he has suffered a 20 point swing if you look at the overall numbers. and it's starting to hurt. i mean, it's not that they blame him for these particular scandals, because when you grill down in these polls, they don't blaem him, but it is causing an erosion of trust to have so many

things popping up across the government. >> think about it this way. i can't think of a president who's had a worse six months of his second term. it's been utterly heinous. every day brings more bad news. those numbers are high now. but they're going down now. the question is how far down and how long can he roo id this out? >> nixon? he had a pretty bad six months, didn't he? >> it was the last six months that got him. >> you remember it that well. great to see you. >> you bet. want to bring in this fox news weather alert and the first topical storm of the atlantic hurricane season gaining strength. 75 million in the path of this thing. plus a possibly life saving ruling for a 10 year old girl starting debate about transplant rules. and for many more beyond this child. and one congressman says he

does not trust the testimony he heard from the irs folks yesterday. so we will cross examine one of the witnesses themselves after a heated exchange we had here on this program yesterday. it's next. they talked about how they lost a $30,000 donation because they didn't want to face the scrutiny -- >> he didn't offer any proof. he didn't offer any proof. >> he was lying? is this your answer?

a $30,000 donation because they

fallout on the irs hearing targeting conservative groups. jim mcdermott claimed that the groups themselves may be to blame. and maybe they were exand rating the harm they suffered because

they were not placed under oath. here's that. >> the only group that lost that was told they couldn't have an exemption was a liberal group. >> but you know that many, many groups, hundreds of them were kept waiting for months and months and years at a time. >> they were never denied -- >> who cares? who cares? if you're stuck with for three years with no answer, isn't that the same as in effect denial? >> ms. kelly, they can still operate. they can still collect money. they can still put out advertisements. they can use their first amendment rights. nobody at the irs stopped them from doing that. >> but congressman, that denies the testimony you just heard. they talked about how they lost a $30,000 donation because a lot of people don't want to donate to groups that haven't received the stamp of approval. >> that was not under testimony under oath. >> you reject it.

>> he didn't offer any proof. >> he was lying? is this your answer to that in. >> no. no. wait, you're, ms. kelly, you are putting words into my mouth. >> i'm asking you. i'm asking you. >> you are putting words in my mouth. stop it. >> i'm not, sir. i'm asking you whether you are rejecting that testimonial as not true. >> i am saying people can say anything, and they do say in testimony before committees. but the fact is that we don't know that to be true. >> well, joining me now, the subject of that exchange. kevin whose name i messed up yesterday. you are the founder and president of linchpins liberty. >> thank you for having me back on and thanks for getting my name right. even the committee missed it about eight times on tuesday.

i'd like to start by saying after being harassed and having my constitutional rights violated for 29 months by the irs, it is outrageous that now a member of congress would attack the victim. >> and that is what you feel he is doing. >> and that is what you feel like he is doing? >> well, if i were trying to make up a story and i were trying to imply that i had received a larger grant -- or don't you think i would have made it more dramatic? the boring truth is that i did receive a $30,000 grant, but if i were lying, utd' think $100,000, $1 million. you have proof here. you notice i redacted it to protect the privacy of the donor, but it does indicate that i did indeed receive a $30,000 grant. and if the congressman would like a copy of that letter, he can subpoena it, but it will yield him nothing but more embarrass. . >> it's posted on fox news.com.

but that's what he was saying that you didn't offer any proof and documentation as if this were a court of law and the burden was on you to come prove the harm that had happened to you as opposed to, you know, you and your fellow panelsts who were decent, hardworking people who were asked there to take time out of your day to help these lawmakers understand what the irs has ton. what it admits it has done. >> exactly. yeah, lois lerner has admitted it. i don't make a distinction between whether i'm under oath or not. i tell the truth all the time. >> he also came out at the beginning of his remarks yesterday and seemed to suggest, look, you're upset about what happened to you, maybe you should be looking at yourself. and let me play you part of that. >> none of your organizations were kept from organizing orb

silenced. if you didn't come in and ask for this tax break you would never have had a question asked of you. >> and went on to suggest that what you really were after was to have no scrutiny of your group whatsoever. >> well, megan. that's actually no what we're asking. what congress is trying to do and it's chilling because even during the testimony on tuesday, they were attempting further to limit our speech by saying what the democrats is saying what is social welfare to them is social welfare, but somehow or other whatty we deem to be good for the social welfare like protecting individual liberty and keeping the rule of law, that is somehow not entitled to contusional protection. can you imagine if this was about race, if they said kevin, you can ride on the bus, but you have to i sit in the back because of the color of your skin, what they're doing here is violating every bit as fundamental of a right. >> i know that the congressman

got quite a few calls yesterday to the point that he was happening up on them. they weren't happy about the way he treated you and questioned your honesty. we'll see whether he does request additional proof from you and your panel. >> thank you. appreciate it. coming up, a dramatic twist in the story of the soldiers killed and wounded in the ft. hood incident. we will see if they get the acknowledgment they are looking for, that this was actually terrorism because of the defense we now know the defendant will be offering. stay tuned for that. and a stunning display of faith and fearlessness at one high school graduation. wait until you see this. next. uh, i'm in a timeout because apparently riding the dog like it's a small horse is frowned upon in this establishment!

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the first tropical storm of the atlantic hurricane season is gathering strength. watches and warnings in place for most of the east coast. that means about 75 million people could be affected. tropical storm andrea taking aim at florida right now. and forecasters warn this could be a bad one. threats of tornados. there are reports that the storm has spawned at least six twisters in florida. although andrea is not forecasted to become a hurricane, the winds will at time cross into hurricane strength. they suggest you take this seriously. we'll continue to watch it. a remarkable story out of south carolina where video of a high school valedictorian going viral. he tore up his kmins. speech and decided to address

the crowd another way. >> it is called liberty high school. and they will long remember the valedictorian's speech given by roy costner the fourth. in pickens county, the school district has been getting a barrage of complaints about prayer in the school district. when he took the stage, well, he took his approved speech that was approved by the school and he tore it up, right? and then he began talking about his christian upbringing. here he is. there goes the speech. he begins talking about his christian upbringing, how he was glad his parents led him to the lord at a very young age. and then he said this, listen. >> i think most of you will understand what i'm saying. our father, who art in heaven, hal owed be think name, think kingdom come, think will be done

[ applause ] >> yet, we played you 20 seconds of that, but the cheers went on. you can hear them going on. and he kept going trying to get through the prayer. did they come up and haul him off stage? no, they didn't. the school says he will face absolutely no disciplinary action at all. he says he was overwelled at the reaction by his classmate tscla. >> wow, wow. it says something that it takes courage to recite the lord's prayer when you've been honored as val deck tor yan. up next what could be a life

saving ruling by a court, the health and human services secretary. and a horrifying scene plays out in front of the today show cameras. and he invited the first lady to speak and then proceeded to heckle her. the first lady's confrontation with a gay rights advocate sparking headlines. we will debate how both sides handled it. >> we cannot wait. right now, today we have an obligation to stand up for those kids. and i don't care what you believe in. we don't -- wait, wait, wait. one of the things i, one of the things that i don't do well is this.

for fighters keeping the german force on the ground while

nazis the pep traited strongholds. the allied soldiers had an act of fighting that was the most concentrated example of heroism in the history of warfare. that is being remembered today. the 69th anniversary of d-day. more than 9,000 americans layed down their lives that day. many of them laid to rest at a cemetery overlooking omaha beach. this war hero, 90 year old eric gibbens, and two dozen others paying tribute to those lost on that day. we are also tracking a developing story today about a

dying 10 year old girl who had been denied access to the adult lung transplant list. she was on the child one, but not the adult one because she's only 10. you have to be 12. a judge has stepped in, allowing her to be eligible to for lungs, should they become available. the news raises some very difficult issues about these transplant rules. if sara gets a transplant, somebody else would be bumped down the list, potentially denying them a life saving operation. and some bioet cysts have come out questioning the decision in the case. joining me now, a bioet cyst. i want to ask you about this. this is a the bioet cyst who came out and said acting under pressure from a media savvy

family or the noisiest person in line is bad policy. your thoughts. >> well, that was before the judge's ruling. this is a case that's appropriately brought before a judge to individualize decision making. the rule, the 12 year old rule is an arbitrary rule, a medical decision should be made on the basis of the physical and physiological characteristics of the person. and sarah, clearly was eligible for a transplant, to let somebody who's less appropriate get an organ before her because she's under 12 is age discrimination, and it's wrong. >> it looks like -- it's not immediately clear what the judge's order means for other patients in this country who need lung transplants, but it looks like the order requires that sarah be moved to the adult

transplant list and the child lung transplant list. if there's a child who needs the lungs more than sar a, do they still get it? >> yes. but she was in a situation that she wasn't eligible if there was an adult who was less needy, less medically needy than she was because she was under 12, the judge's temporary restraining order gives her the possibility of getting an adult lung. >> can i jump in just for one second. we've got breaking news out of new jersey on the filling of the senate vacancy, stand by. >> sure. all right. we're waiting, my apologies, i was told we had them, i can see them, but i can't hear them. and we're waiting to get his feed up so we can hear what he's saying. keep in mund he had already announced earlier this week that he was going to allow a special election to fill the seat now

vacant as the result of the death of frapgs lautenberg. he said thayer would be an election in october. that was controversial because no republican has been elected to the u.s. senate since 1972 out of the state of new jersey. and many of republicans wanted him to use this opportunity to put one in office. he declined to. so there's a problem with the signal. as soon as we get it, we'll go back to you. my apologies. it's a hot mess in the control room basically is what i'm trying to tell you. and sometimes that happens here on cable news, and you know that, because you watch us. bear with me. doc, thank you for being with us and standing by. the judge seemed rather upset with kathleen sebelius. he said she had failed to protect the very few children nationally who are subject to a rule that he found ash trar eye and capricious. and there haven many who have

defended her saying the rule is the rule. she has the discretion to put it to the side. but until some panel sets that rule to the side, why should she do it. >> well, i think she wisely followed the judge's temporary restraining order and set the rule aside in this case, because we need to review to see whether the rule should be changed. in this case the, force the issue that the age discrimination should not be the basis on whether somebody gets a transplant. >> if you are at the top of the list as an adult. and i'm not taking a position on little sara, god knows. i'm just arguing, devil's advocate. if you are at the top of the list for the adults and sara's at the top of the list for 12s and under, and shy's been added to your list and she pumps you

down, is that a life decision that a court has effectively made for you as an adult? >> well, the court is saying that the rule is arbitrary and capricious. and they aren't making a decision against somebody. they're making a decision about the stupidity of the rule in the first place. and i agree with the judge. the judge was wise. he only issued a temporary restraining order, emphasizing that they should reconsider the rule itself. and he's making a judgment in the particular case to protect sara against being discriminated against unfairly. >> can they do that this quickly? because they're saying that the rule that had where been put in place was going to take potentially years, if they debated the merits, can the adult lungs do well in a child under 12. >> that's a medical question. >> can they do it that quickly, the medical review? >> what they should do is make

the decision based on medical indications rather than arbitrary rules. they put sara on the list and said she was eligible for an adult lung. that means that show's medically able to receive it. if she weren't medically appropriate then she shouldn't be on the list, but she's on the list because of her lung scores and also because her body presumably, is able to receive an adult lung. age discrimination applies not only to this rule, but to other rules like saying that adolescents are legally incompetent if they're under 18. and i've written about that, and so i think that's another stupid rule. >> understood. there's a lot of them to choose from apparently. what we will see, the hatest knews today is that sara was struggling physically. we don't know what that means or to what extent, but we'll continue to follow the case.

thanks for your thoughts on it. >> you're quite welcome. meantime there are new questions about the ft. hood shooting. the defense claims to defend himselves. his defense will be that he opened fire on all those service men and women as a way to protect taliban fighters in afghanistan. well, does that change this administration's assessment of this case as quote workplace violence. and if it does, will the family members, will the victim, those who were shot, finally get the purple hearts and the recognition that many in this country believe they deserve? plus, we are learning that the woman who heckled first lady obama was actually a member of the group who invited the first lady to speak. that's up next.

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fox news alert and the news out of that press conference that we tried to bring you a few minutes ago, chris christie has named the attorney general of interim new jersey senator. we will bring you more on this as we get it.

the lady who confronted first lady michelle obama was a minimum of the group that invited her to speak in the first place. take a listen to what happened. >> we cannot wait for the next presidenttial election to get fired up and ready to go. we cannot wait. right now, today, we have an obligation to stand up for those kids. and i don't care what you believe in, we don't -- wait, wait, wait. one of the things i -- one of the things that i don't do well is this. >> not captured on that recording is what the first lady did next. she apparently left the lecturn to approach the woman who was heckling her and reportedly said, kwoerkts listen to me or

you can take the mic. you all decide. you have one choice. i think they decided to stick with the first lady. joining me, a fox news contributor. who is this person, ellen sturts. and what was she heckling the first lady about? >> she is apparently a member of a group called get equal, which is a more radical, edgy gay rights organization that started in the last few years. and what she was heckling the first lady about was the president failing to sign an executive order that would bar decr discrimination on contracts. >> what was the first lady doing at this event? she wasn't speaking about gay rights so far as i can see. she was talking about children. so, is there a question,

obviously we're about to get to the question of propriety of interrupting the first lady. but is there ha question about keeping it on topic. when they heckle the president last weekend at the national security event, they heckled him on gitmo. >> you get instant access to the president. and the fact is, heckling the first lady, never a policy. and i'm no fan of the first lady and her politics and beliefs, but i agree there's decorum. what i don't like is hypocrisy. where's the left today calling this heckler a racist against

president obama? and hypocrisy is there and the response that typically happens when anybody says anything about michelle obama or barack obama. >> you should point to examples. i have never called anybody on the right a racist. i think you're making a leap. i think, two separate points here. i do think there is a question of decorum and civility. and that goes from everything from this incident all the way to a member of the house of representatives calling the president a liar during a joint session of congress. there is a tonal issue here that we should all be concerned about. and i think this falls under this. separately, i agree with you, perhaps this extent, but i think this falls into that. i think a lot of people, and especially, frankly, communities of color are fed up with rudeness towards president obama and by extension michelle obama and his family has that, among other things, has a partisan

tinge. >> remember when president bush had a shoe thrown at his head? i was obama. i was on the mall that day. the people out on the mall boo'd, george bush, laura bush and bush sr. they were showing up and they boo'd them. >> there is a lot to say on both sides. it has to stop. >> i agree it's not right. but hillary clinton talked about dissent with government and all the hypocrisy or the consistency of the hypocrisy out the left wind media when somebody disagrees with the left. but the big issue i think it's wrong as americans. >> this woman apparently was up said that michelle obama got in her face.

you are lucky she talked to you at all. >> i said the president was setting himself. >> megyn: i got to go. please don't go away. so much more. people a sticker and had them show us. 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 much is the official retirement age. ♪ the question is how do you make sure you have the money you need to enjoy all of these years. ♪

♪ ♪ ♪ >> molly: after a crazed man takes advantage of a live audience to stage a very violent act. trace gallagher has more. >> if you've ever been there, today show when they go live outside they are right in the middle of rockefeller plaza. there is barricades but there are hundreds of people walking around the area. you take a look at cellphone video. there was a man in a white chap and he had a knife. he got the knife. he looks like he is threatening and the police

had guns drown on him. they tackled him right there. he started cutting his wrist and arm trying to commit suicide. today show cameras were not trained on the man, but he was in full view of matt lauer. nypd immediately responded but it freaked out the crowd and the plaza had to be temporarily cleared. show was pushed back inside and matt lauer said this on airlifted. >> as usual we've got security people around here who do a fantastic job. in the nature that no one could be injured we understand the individual said something about not wanting to harm others but causing harm to himself. >> clearly security was all over it. today show and they said they will go back outside.

xom kom on, they are in a tight race and they will do it again tomorrow night. >> megyn: all right. trace, thank you. >> testimony from fort hood shooting suspect, a new plan how he plans to defend himself and raising major questions how this was, quote, workplace violence and not a terrorist attack. that is next. despite days of back and forth doj they say eric holder has failed to answer their questions on whether he targeted journalists. they will join us live to explain and how they plan to change it.

♪ ♪ >> megyn: fox news alert. major push for answers from the white house and government is collecting phone records of over a hundred million americans. brand-new hour. i'm megyn kelly. secret program is collecting phone records of american customers of verizon at least verizon. that is one of nation's largest phone companies and lawmakers are warning a massive seizure of information raises concerns, serious ones about why such a wide netted would be cast and how this information may be used. one senator prefg eric holder for answers during a congressional hearing. >> could you share to us that no phones inside the

capitol were monitored of members of congress that would give a future executive branch if they pulled this thing up would give them unique leverage of the legislature? >> with all due respect, i don't think this is an appropriate setting for me to discuss that issue. i would be more glad to come back in an appropriate setting to discuss the issues that you have raised. in this open forum.... >> i would interrupt you say, the correct answer, no, we stayed within our rein and sure you we not spy on members of congress. >> megyn: it's not clear to me whether he was on point or not. i want to tell you what we saw this morning, from members of congress in response to this report that the nsa getting all these records, hundreds of millions of americans, phone records has not fallen along partisan lines. right now i'm looking at on

the record statement from die rainy feinstein and steve chamblis coming out and talking how this is primary mission of the intelligence committee to protect americans. look this has gone on for a long time. you have jim sensenbrenner saying he authorized the patriot act which was used and he believes they overstepped their bounds. ed henry is traveling with the president in north korea today. >> if you hear the sounds of helicopters ma reason one is coming in. if you thought getting oust washington would help him escape the controversy back there in the nation's capitol, this nsa story is building up a brand-new controversy for the administration. the outrage from the left to the right, again we

apologize for the audio but the bottom line is al gore tweeting this morning that this was a threat to privacy rights for americans, as you malfunctioned. republicans james sensenbrenner telling you that this law is being used with too broad of a brush in terms of how the administration is implementing it right now. maybe there needs to be a fix. we have fresh reaction from a deputy white house press secretary telling us moments ago this is in surveillance is a critical tool in fighting terrorism. as the balance between fighting terrorism and protecting privacy rights. if you go back to some of the things that then senator obama said in 2008 he wasn't forgiving of the bush administration. that is why john boehner said there will be more oversight of this program.

>> i want accountability in making sure, as i said before, somebody is watching the watchers. you don't have an administration that feels it can make the own determination when warrantless wiretaps are applicable without going through a fisa court. >> there is public policy and civil liberties concerns among americans today. i trust the president will explain to the american people why the administration considers this a critical tool in protecting our nation from the threats of the terrorist attacks. >> reporter: and administration's defense in here, part of it top lawmakers john boehner are read into it so there is some oversight of the program. we should also note a republican is critic of president told fox he believes it's okay verizon

to be sharing these records as long as the government is only looking at suspected terrorists and people that they believe are speaking to terrorists. >> megyn: it was not clear at one point, it sounded like it was going to land on you. >> i was not being surveilled upon. >> megyn: i do want to clarify, is collecting the phone records -- barack obama back in 2008 was listening, wiretaps. that is different. that is not what we're talking about as far as we know right now. >> reporter: right. also, government officials pointing out as far as we know there is not data mining going on. it's specifically targeted to what the government believes to be suspected terrorists or people who are targeting to terrorists. they are not collecting this information and then comparing among average americans to keep track of

what they are doing. critics are raising questions whether this program could be abused. >> megyn: i want to tell you are viewers, we have been making calls on this -- why would the ngsa hundred million people's phone records some there is a question about our information, this may be done as a records preservation attempt. phone companies don't keep records of phone calls forever and they may be purged. so if the government may need to see a certain set of phone calls it may reach out to red cross is and other phone companies here is the court order preserve the record. we'll preserve them at the nsa and another line they have to cross before they can review the numbers and see on who made what phone calls to whom. then that would have to be a more targeted, specific showing. we have reason to believe, megyn kelly was talking to

a terrorist so we wanted to see her records. they are preserved and go to a court and get the order. that would normally be the system, but that is not yet clear. we're not sure on whether the government that is what it is doing. the questions that are going to be asked in the days to come, did they follow the law? was it appropriate? was it narrow enough and now what restrictions are in place, if any, to protect the data from regular snooping by the feds. >> megyn: also tracking new fallout from a jaw dropping spectacle as congress investigates excessive spending at the irs. title says it all -- collected and wasted. irs spending culture and abuses. inspector general, russell george detailing how the agency burned through $50 million on conferences

between 2010 and 2012. reporting one event alone cost over $4 million. is this how you travel when your company sends you on out on business? you get the executive suites? look at this place. they requested upgrades and stayed in presidential suites that normally cost up to $3500 a night. some lawmakers really got fired up over two videos starring employees line dancing. they aren't half bad and parroting star trek costing more than $50,000. >> what were you thinking? you were thinking this will never be seen or how will it look? >> when we have episodes like this it has an impact on the average person -- i live in a block where most people don't even make $50,000 a year. yet we can produce a video that has no redeeming value,

none and spend taxpayer's hard-earned dollars for that. >> not only it was eight monument waste of well over $50,000 of taxpayer's money, but i would say it's an insult to the memory of star trek. [ laughter ] >> i could do a better captain kirk. >> you have squirting fish as part of $64,000 -- did you anyone see a squirting fish? >> no, sir, i did not. >> i would love to see a squirting fish. i am sure some of the taxpayers, people that went to work early this morning out of baltimore or my district or central florida would love to know that the federal government has spent $64,000 on squirting fish for federal employees at a conference. >> i was shocked when i

found out that they, through themselves parties, but to find out not only does the irs take your money, not give you proper answers and then when it comes to tens of millions of dollars use it in a way that is at best maliciously self-indulgent. >> megyn: now would be the time we cry in our soup. you have to laugh otherwise you will be reduced to tears. so that is mike manuel maintains a boyish grin as he watches carol talks about insult to star trek. what a day, what a farce! what are they doing at the irs, mike? >> that 2010 anaheim

conference getting a lot of attention including $135,000 spent on outside speakers. goodie bags for employed employees. dozens of them going to hotels and inspector general talked about the hotel upgrades. >> the agreement with the hotels and caters had a total of upgrades were provided each night by the three hotels. for example, the commissioner and deputy commissioner stayed multiple nights in presidential suites at the hotels. >> reporter: then the reminder this is all happening in 2010 when millions of americans were out of work, others were losing their jobs including some government employees. >> law enforcement officers, we were furloughing teachers. prosecutors in my own office were furloughed. secretaries in my office were furloughed.

those were people that struggled to make ends meet. >> reporter: a lot of question who is responsible and who authorized all of this. that has been more difficult to get at. as we've seen with the irs targeting of conservative groups that lawmakers are saying they will stay on the case and have many more hearings and there a lot of heavy lifting going on behind closed doors. >> megyn: i'm glad to know where my taxpayer dollars are going. at least they didn't waste out presidential suite. really enjoy the waste, right. you can enjoy my money now that i no longer have it. >> they are talking about having extra cash so the need to burn through it, congress might take it away. >> megyn: let's hope they do. thank you, mike. major questions coming up about the obama administration's decision to call fort hood shooting workplace violence as we

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♪ ♪ >> molly: developments in the case have accused fort hood shooter. re-igniting the political firestorm to classify the 13 murders on that base as workplace violence and not a terrorist attack. major nidal hassan so trial for gunning down soldiers in 2009. judge has allowed hassan to defend himself to the outrage of the victims' families. now, we are learning that hassan plans to argue in his defense it was really defense of others, in particular he had to murder 13 people and wound over 30 others to protect members of the taliban who would

soon in his view be fighting those service personnel. how does this change the case? joining me is josh peters, author of the book and joining us by skype is kathy stallmaker. the wife of rex stallmaker who ran to the aid of the victims. thank you so much for being here. kathy, let me start with you that has a direct connection. do you believe now that we have essentially an admission by the defendant that he was defending the taliban against u.s. service personnel we may be a closer today to have it classified fight as terrorist acted and not workplace violence? >> thanks for having me. should have been classified a terrorist act from the beginning, but now we're certainly they are admitting to the defense of others. hopefully it will get

reclassified. >> megyn: do you believe you or your husband will have to testify at this trial? >> my husband was subpoenaed for the trial when it was scheduled to zart in august of 2012. as of now he has not been subpoenaed yet. frankly, those are one of the things that contributing to the nightmares again. >> megyn: does he want to testify in has has gets to cross-examine him? >> no, he does not because major hassan's background as a he knows what buttons to push especially to the victims and he has been diagnosed ptsd. >> megyn: as anybody that has been in sha excavation. i want to bring in ralph, this is controversial from the started. when you have a guy yelling allah akbar. it doesn't take a rocket

scientist to figure out what it is and we stuck with workplace violence label and so they wouldn't get the purpose hearts and other benefits they would get if they would relabel this? >> it's a national disgrace. as with benghazi, the obama administration without a politically correct narrative and you are stuck with the narrative. i have to tell you, as someone who spent a career and officer in the u.s. army, institution i am immensely proud of, first day i was ashamed of the u.s. army leadership on the day of the fort hood shooting. when the chief of the staff the army instead of defending the troops rushed out to say we can't get mad at muslims about this. he totally blew off our casualties. yet there was obvious from the first that these soldiers killed and wounded

and bystanders were victims of the war terrorists are waging against us. the wounded and dead deserve purple hearts and wounded deserve lifetime medical care under v.a. wartime provisions. no question about it. i wanted moral courage from the pentagon. i don't expect it in the administration. >> megyn: what do you think, kathy? >> i agree hundred percent my husband deployed 34 days after the shooting. he was diagnosed with ptsd and in theater in afghanistan. he was not able to get help at fort hood at the time of the shooting. his commander insisted heing through with the deployment. as of today my husband is at a reserve unit trying to get 25 more days in order to get his 20 year letter. army sent us a letter that he had 19 years, 11 months and five days. so he doesn't qualify for his 20-year letter.

after he came back from afghanistan but because of hassan he is not able to do that. >> megyn: a bitter irony what was cause order the base, someone that was supposed to be a fellow soldier and refusal to acknowledge what happened. we're coming up against a break -- does this change? when they hear n has has this is in defense of twa fightsers, will he be forced to change? >> we can't influence the legal process and make all sorts of excuses. this was travesty from start to finish. administration bears some guilt. we need to put our troops' rights and what they deserve above the imaginary rights of a traitor, a coward and a terrorist that

wore a u.s. army uniform. >> megyn: up next a judge what is hoped to be a life saving ruling for a ten-year-old girl, but her parents say she is in trouble.

♪

♪ ♪ >> megyn: fox news weather alert. reports of tornadoes touching down in florida as tropical storm andrea kicks off the season. it's bearing down on the northern gulf course. st. petersburg handing out sandbags and posing major threats as the storm comes toward shore. forecasters say it will be a big weathermaker pushing gale force winds up the east coast. an estimated 70 million people will feel some part

of this. by saturday it is expected to merge into another system turning it into a nor'easter as it moves over new england. new developments on a story about a ten-year-old girl who desperately needs a lung transplant. she has end stage cystic fibrosis. if she were two years older she would qualify to be on organ transplant list and federal judge has granted her the ability to be on that list via temporary restraining order. the family said she suffered a medical setback. >> reporter: we're going to update you on her condition but kathleen sebelius is not going to appeal that recalling. she has ordered the organ donor networks to require that, it created a second candidate record for her

with about birth dated that makes her treat her as a 12-year-old. her original record remains active so she has a priority for pediatric donors. on bottom line she is both lists. after she got the news yesterday afternoon, you can see that sara wasallocated. since then a bad turn, as the family was going to sean hannity's show to interview. her heart rate soared. now he is a being intubated, she has a breathing tube. all potential lung transplant patients are given what they called a lung allocation score between one hundred. on the waiting list. the score above 50, only 139 are above 50, extreme. when sarah came into the hospital on monday her score was 66, extraordinarily high, but

now look at that, her score is 78. it is dire. she is at or near the very top of the list. there has been a frantic push to save her life, but we spoke with a medical doctor who says he is very troubled when medical decisions are decided by a judge. listen. >> what you are not seeing who is dead as a result because she did come on the list. and would they have lived longer? so it says, save the girl but we're not looking like a lifeboat we had to push somebody off in order to bring her on. >> reporter: in the first three months of this year there were three children's lung transplants. 72 kids are still on the list. >> megyn: we had a guy on last hour it will nonetheless be determined still based on medical severity. while it is bad for her but good for her in terms of

prioritization on the list. thanks for the update. big developments in the perjury investigation of attorney general eric holder. up next, an interview with two powerful republicans on the house judiciary committee, the chairman and the chairman of the subcommittee as they call the attorney general to testify again under oath. doj tried to get congress off its back this week but congress is not satisfied. we will bring you that breaking news, next.

♪ ♪ >> megyn: back to breaking news in the perjury investigation of attorney general eric holdinger. we just got a letter demanding that he reappear before the committee to explain discrepancies between the sworn may 15th testimony before congress that he never even heard of the potential prosecution of a reporter for doing his job and his decision prior to that testimony to authorize a search warrant for the emails of fox reporter james rosen calling him a criminal co-conspirator who faced potential criminal liability in the application for that search warrant. they wanted the two pieces of testimony squared. joining me is james sensenbrenner and author of the latest letter to the attorney general, virginia

republican congressman who is chairman of the house judiciary committee. gentlemen, thanks for being here. you had written to the attorney general you testified before us. explain this discrepancy. you got a letter back from an underling, it's all good. never actually prosecuted rosen even though he said he never heard of potential prosecutions. our explanation for the testimony we never brought an actual prosecution. now you have written back and said that is not good enough. you want eric holder to appear before you. i'll refer you to as congressmen, your thoughts on why the a.g. needs to come back? >> first of all, letter we received the from legislative affairs did not answer you will the questions we addressed to the attorney general and they were not answered by

the attorney general. he testified under oath on the record. we want the answers from the attorney general. yesterday late yesterday afternoon we received a letter from the attorney general incorporating the answers into his own letter, but it still doesn't answer all our questions. it raises more questions than we asked because essentially now the contention is it is okay for the justice department to accuse a reporter of a very serious criminal action. he had probable cause to show he was an aider, abettor in violation of the espionage act that raises serious concerns that it doesn't square with what the attorney general said. number two, that seems to be an inappropriate way to get a search warrant and rifle through the chief washington correspondent's emails in order to see what

is going on even if they are claiming they are investigating somebody else. if their charge is correct that he was a co-conspirator in spying, why weren't they prosecuting him? i think it was done for the purpose of getting access to emails they wouldn't be able to get otherwise and therefore we have a lot more questions for the attorney general regarding his statement and how it doesn't square with the facts of this case. >> megyn: congressman, eric holder gave an interview to nbc news yesterday. he said that phrasing where we called rosen a criminal conspirator was necessary to get the search warrant. and speaking of the colleague's point that phrasing was necessary for to them get the search warrant but there is r law requm to assert that a reporter has behaved in a criminal fashion before it will give him a search warrant niovy turn around say, it was all kind of baloney. that is essentially what he

is trying to say. is that undermine the validity of the search warrant and trust of our top law enforcement and the courts? >> it certainly does. the actual request in the search warrant was for much more than the emails relating to whatever information or contact mr. rosen had with mr. kim who is under indictment for violation of espionage act and scheduled for trial very soon. the second thing, this has been missed by the news media. there was a natural allegation there was probable cause that rosen himself violated the espionage act and was not just an aider, abettor or co-conspirator. it should have been obtained by a subpoena rather than a search warrant. justice's regulations

directed to the news media require justices to look at the scope of the subpoena before the subpoena is issued and serviced. they decided to take it up one step further and actually accuse rosen of violating espionage act. that is a chilling action against the news media because nobody is told by a leaker that the material is classified. yet the reporter is doing his job, the reporter will follow up on it. and you to think you might be violating a criminal law to follow-up on information that is news, that means news reporter can't do his job. >> megyn: that is the reason he did it. he wanted rosen's records and he didn't want to notify him in advance. it's much easier to get it from a court when you have no adversary arguing against it. i want to ask you whether

this attorney general has answered the questions directly and if not, why not? he came before your committee -- i hope the viewers will bear with us -- it's worth playing again. what this attorney general represented to you directly. we had heard about the a.p. scandal, we didn't know about rosen but eric holder did. knowing that he had labeled him a criminal co-conspirator, identified him as a flight risk. said he faced potential criminal liability in a f.b.i. search he told you this? >> with regard to the potential prosecution of the press for the disclosure of material that is not something i've ever been involved in or heard of or would think would be a wise policy. >> megyn: congressman, his response to your questioning saying how do you square that with your knowledge what you did to

rosen and the letter, prosecutors had not pursued against the reporter so the a.g.'s testimony was accurate? >> it's not accurate when you use the phrase potential prosecution and not accurate in my opinion when the attorney general has signed off on a warrant that clearly accuses rosen of committing a crime. even goes so far to go to three different judges before they can get a judge to agree to seal the warrant. in the effort to get the judge to seal it, one of the reasons they gave was they considered him a flight risk. if they weren't thinking about prosecuting him, why would they be worried about a flight risk. >> megyn: how do you get him to come back to the committee, it's an invitation, does he have to to accept? >> we'll take it one step at a time, but we think it's appropriate that he come back. there are lots of issues related to this and overall

policies with regard to the justice department in terms of investigating reporters, investigating leaks. by the way, both the chairman and i believe the government should investigate leak that has jeopardize national security. they have got to follow the rules and protect rights of reporters and first amendment. all those questions are appropriate given the attorney general's answer. >> megyn: i wanted to ask you, save you for the last, on a different matter in the news today. this whole nsa story, the fact they've got phone records of millions and millions of americans. we've had a lot of folks come out republicans and democrats who have said this is not a big deal. this is what the nsa does to preserve records in case they need to conduct a sweep for terrorist records. this has been going on for years and it's being

overplayed. your thoughts as man who authored the patriot act? >> this is a really big deal. the business record section of patriot act were designed for specific investigations against specific individuals. i would see nothing wrong with targeting the phone records of somebody who is suspected of terrorism, but everybody who either sent or received a call from a from a verizon phone and maybe the other cellphone providers, that was never be the intent of the business records section. the business records section is set to expire in 2015. i want to find out who y they decided to have such a broad brush to bring in everybody. if we have to amend the patriot act before 2015 to stop this from happening, i'm all for doing that. i'm the author of the act. >> let me ask, i agree with the chairman.

this is something that if it was the intent of the administration, it could apply to any administration, it should have been debated in the fashion they wanted to keep all these records in this fashion. if that, indeed, their purpose, that should have been a part of the debate in the congress. believe you me, as we find out more about this, it's our intention to get the facts and have that debate and change the law if necessary. >> megyn: you got a lot to talk to attorney general about. good luck. thanks for being here. >> up next, an unusual defense attack in the george zimmerman murder trial. his attorney is asking a judge to ban many words from being used at the trial and many facts including any description of how george zimmerman got out of the car after the

911 operator told him to stop pursuing trayvon martin. can he do that? ... ... ... ... ment:... flint. ...

♪ >> megyn: fox news alert out of london where the queen's husband prince philip has been admitted to the hospital. you are looking pictures from sky news. we are told he is undergoing some kind of exploreer to operation under his abdomen, it doesn't appear to be a life-threatening situation.

more on this as we get it. kelly's court is back in session. a motion to ban certain words at the trial of the man accused of killing trayvon martin. a pretrial shearing underway in florida for george zimmerman where on a number of issues is coming up. he claims he shot martin in self-defense last year. now his attorney, zimmerman, is making sure words and phrases are used in the trial. on the list, profiles, vigilante, self-appointed watch captain, want to be cop should not be said. he is also against allowing prosecutors to say zimmerman got out of the car after the dispatcher told him not to. or that zimmerman confronted trayvon martin. can you do this? mercedes and mark, former

prosecutor and defense attorney. i get -- not wanting to characterize your client. okay, i get wannabe cop but don't let them say how my guy out of the car after the 9/11 call? >> the motion has to be denied. i am a trial lawyer and it's my tool and law allows me to make any argument that is based on reasonable inference from the evidence. why stop there. why don't you add you don't want prosecutors to use the "g" word. i hate when they say my client is guilty. it makes them look bad. how about the finger pointing. >> megyn: if you could exclude that could be harmful to my client.

thank you. listen here is the 9/11 call where the 9/11 operator says to george zimmerman, don't follow? >> this guy looks like he is up to no good or on drugs or something. he is walking around looking about. >> are you following him? >> yeah. >> we don't need you to do that. >> okay. >> he wants banned any mention to him getting out of car after police told him not to. isn't it a question of fact? >> i think what o'meara said i'm going to put everything out there and let the judge, he may lose the argument, others may be more serious and push forward and argue all of them and judge is confronted with multiple areas that he has to be excluded. >> megyn: in what way, you generally don't talk like that in opening statement but you can say the evidence will prove that he

is wannabe cop. most of this is argumentative but i don't think he has shot at this and how the motion is going to affect the jury pool. we're going to talk about what happened in court this morning next. he's on geico.com setting up an appointment with an adjuster. ted is now on hold with his insurance company. maxwell is not and just confirmed a 5:30 time for tuesday. ted, is still waiting. yes! maxwell is out and about... with ted's now ex-girlfriend. wheeeee! whoo! later ted! online claims appointments. just a click away on geico.com. to prove to you that aleve is the better choice for him, he's agreed to give it up. that's today? [ male announcer ] we'll be with him all day as he goes back to taking tylenol. i was okay, but after lunch my knee started to hurt again. and now i've got to take more pills. ♪ yup. another pill stop.

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>> megyn: so, mercedes and mark back with me now.i'g the other big thing in court today is whether the state can offer expert testimony on whether it was trayvon martin who is screaming on this 9-1-1 call as witnesses called up toç say, there's this big fight, whether he is screaming in the background, quote, i'm begging you, end quote, stop. the prosecution wants to say that's the case. omar remarks -- o'marra says, no, the experts are not reliable. here's the tape.

>> do you need police, medical? >> maybe both. there's somebody screaming outside. >> what's the address? >> is it a male or female? >> it sounds like a male. >> you don't know why? >> i think they're yelling, help, but i don't know. >> megyn: it goes on from there. is this likely to be excluded altogether? >> it would be really difficult for it to be excluded wholly. depends whether the judge considers it too prejudicial and it's difficult to hear the person closest to the tape. >> megyn: that's why they want to offer expert testimony. >> one reason it may be excluded. she can't even determine on the 9-1-1 callç whether it's male r female. i'm too afraid to go out there. the judge may say this is too prejudicial to go to the jury. >> megyn: there's in court right now. the defense says the states experts are using unproven science and shouldn't be allowed

to testify about this at all. will they prevail? >> if mercedes just say the judge may preclude the 9-1-1 cape from coming in, i thoroughly disagree with her. letting the tape in. what it nose clear whether is the expertsh hearing and show that the experts have accepted within the scientific community-what they're alleging and the technology they use to ascertain who it is on the tape. that's in question but the tape is coming into question. >> megyn: the came comes -- the tape comes in but the expert testimony, we have to wait. [ indistinct conversations ]

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>> megyn: thanks for watching, studio b with shepard starts now. >> shepard: the news begins anew. a stunning report claimst the feds have been secretly recording the phone conversations of tens of millions ofç americans and will do so for another month. how do you get to do that, government? we'll have the white house response and our judge's analysis. >> a dying ten-year-old girl in desperate need of a lung transplant, now officially on the adult donor list but a family spokesman says her condition is worsening, and the parents of a boy in the same situation have filed their own lawsuit against the government. also, beam me up,