looking out for you. welcome to "the kelly file." i'm megyn kelly live from the world headquarters of fox news in new york city. tonight -- a major ruling in the nsa spying case. a victory for privacy. are we now less safe? plus a decorated marine now at risk of losing his career for trying to save lives. wait until you hear why he is now in the cross hairs. and a car jacking in an up scale mall. a couple just finishing their holiday shopping when the man is gunned down dead. we'll have the latest. and what you need to know to stay safe. breaking tonight, just weeks

after the administration pressed america's insurance companies to step in and reinstate millions of cancelled plans, fox news confirmed that one of the country's biggest carriers is saying, "sorry, there is no way we can do that." welcome to "the kelly file." i'm megyn kelly. the threat of a looming coverage crisis got closer for thousands of americans tonight. since the launch of obamacare, nearly 6 million americans and maybe more have seen their health insurance coverage cancelled. despite the president's repeated promises that they could keep it. about a hont ago under increasing public anger and political outrage, the white house suggested a fix. the president stepped to the microphone and asked insurers to reissue the plans that were cancelled thanks to his law. >> the bottom line is insurers can extend current plans that would otherwise be cancelled into 2014 and americans whose plans have been cancelled can

choose to re-enroll in the same kind of plan. >> but it was discretionary. now aetna, one of the largest insurers with more than 50 million customers is rejecting the president's fix marc thiessen joining us. good to see you. this is the largest insurance carrier on record saying no directly to the president. the third largest in the country to say your fix will not work for us. so it really puts an empty promises into the president's words we listened to. >> yep. another broken promise. this shows how powerless this administration is to fix the train wreck they set in motion. a month ago the president said i have a fix. we'll let the states and insurance companies continue to offer the cancelled plans. that gave hope to 6 million

people losing their plans. half the states rejected it. the insurance commissioners have to approve. now you have a major carrier like aetna saying, no, we are not doing this. the president's fix is no fix. he didn't have the power to enforce it. they just did it again on friday. as you pointed out many times on the show, unless you pay you don't have insurance. on december 31, they extended the constitutiondeadline to the. a lot of people won't have care. sebelius said we are urging insurers to let them bay after december 31. we are urging them to accept partial down payments of the first month's premier yup, to let them keep their doctor even if not in the plan. they have no authority to enforce this. peel will lose their plan, doctor, insurance. they can do nothing about it. >> when we get to january 1, 2014, we are looking at a situation where this whole fix.

the president's critics said it was political. he knew it was an empty promise. he was trying to say, i tried to keep my promise. when we get to that date we are going to have millions of americans potentially who are now not covered who were covered prior to obamacare. >> absolutely. look, these are the numbers. they have signed up people on the federal and state exchange website. let's give them another 800,000 people or so they have gotten into medicare. >> medicaid. >> i'm sorry, medicaid. 1.2 million people they signed up. never mind 25% of those didn't actually get their forms sent to the insurers and they haven't paid yet. give them credit for 1.2. 5.9 million people lost their plans. they've got a gap of 4.2 million. not covered. what are they doing for them january 1?

say half of them find coverage in the private market. you have millions of people who lost their insurance, who are insured today, will be insured on december 31 and uninsured on january 1 because of obamacare the president's solution was the fix we ran the sound bite of. thousand you have aetna saying, nothing doing, mr. president. we're not in on it. so the cancellation notice may come. if you got one and thought it would be reversed, aetna saying it's not going to be. the deadline is looming. marc, thank you. developing tonight -- new accusations that america's promise to our veterans has been broken. after the house approves a budget that would cut pension payments to hundreds of thousands of american troops. the news upset military spouses including babette maxwell. she's part of a group hosting a

twitter town hall asking the senate to reject the pension cuts. they will vote tomorrow. we learned a short time ago a senator proposed an amendment to restore the mentions but the vote has to happen. her husband is a naval officer who plans to retire after nearly two decades serving our country. she is the cofounder and executive ed tor of "military spouse" magazine. paul ryan and patty murray got together to come up with this deal oh. he says the reason they have to have the hit is because it will save the military overall. that this whole deal is going to prevent cuts to the greater military. so your husband and your family needs to take this hit. >> well, that's ridiculous. we have already taken the hit as the statistics from this war will show. we have 600,000 retirees that

served in iraq and afghanistan that will be impacted by this not to mention any future active duty that intend to retire. 50,000 of us are dealing with traumatic brain injury and a quarter million with post traumatic stress disorder. they have gotten their pound of flesh. >> the politicians in washington scratch their heads and say, we can't find another way. we're sorry, but it has to happen. paul ryan is saying, well, when you turn 62 then you will get cost of living increases but not until then. it's just this little amount. a few thousand a year and it doesn't kick in for a couple of years. maybe we'll find a way to avoid it. >> well, that's nice. he's not active duty nor is he a retiree. for the average enlisted service member, you are talking about an 83,000 cut over the course of the working age years. for an officer we are talking

about $124,000 over the course of his working years. that's quite a bit of per month deduction because they need to go back and pay bills they couldn't afford in the first place. i coming up with a budget. i do. i thank senator wicker for coming up with an amendment to it. i urge every american to take notice. if they are coming after military retirees' pay, everything is fair game. nothing is off limits. >> this is almost not worth asking. politicians on both sides of the aisle break promises all the time. that's the truth. but you were promised -- the military was promised that this would not be touched. that this type of -- >> that's correct. the president himself directed congress that any change to military retiree packageses needed to grandfather in those already in the retirement system and those on active duty. all we are asking are members of

congress and elected leaders to honor their word. we don't have a union representing us. we have our faith in government to honor the promises they have made to those who served. let's also point out that the $7 billion in savings this plan will generate doesn't even cover the interest -- the interest -- in the additional expenses that this same bill authorizes. >> paul ryan said, well, a lot of the retirees have a second job. so they are not living and eating off of this pension. your thoughts? >> well, i think that's a case-by-case basis and it doesn't matter. the fact is these are earned benefits. this is not a social welfare program. these are our earned benefits. we have paid in time and commitment to the military in order to have these earned benefits. these are promises that were made to us. some of us agreed to stay in the military longer at congressional bidding because the military needed us and we want them to

honor their word. that's not too much to ask. >> on the subject of broken promises, i don't mean to suggest it's nothing because it's done all the time. what do you think the consequences of this will be? if the military can't trust the promises made by the lawmakers, politicians, presidents, our congressmen, what is the result of that? >> there are long-term damaging consequences. future generation wills look t at how this generation treated their veteranses before they elect to serve. what happens when nobody believes the promises and the word given my members of congress anymore and they don't trust that their promises will be honored? we won't have people willing to serve. we won't have an all-volunteer military any longer. those are consequences that every american really needs to evaluate when they are talking about whether or not to support something like this bill. i urge every american out there to really take a hard look.

if they are willing to come after military retirees in such a manner that wasn't necessarily fully disclosed to the american people in time for us to do something and to act on it, really take a look at who is safe. the answer to that is nobody. >> i know you are having a twitter town hall right now. >> we are. >> do they follow you? >> the hash tag, # keep your promise. we have been tweeting to senators and elected oh officials since last week. everyone participate. # keep your promise. >> thank you and your husband for your service. >> thank you. >> the jury is still out on whether the administration should be spying on millions of americans. but a federal judge today weighed in. charles krauthammer will show us next what it means. are we safe? are we as safe today as we were a week ago? plus, a new poll shows americanss with health insurance think obamacare is making their coverage worse. one of the key architects of the

law is here to answer the charge coming up. plus, howard stern, a grand dad, and the moonlight bunny ranch. wait for this one. [ male announcer ] here's a question for you: the energy in one gallon of gas is also enough to keep your smartphone running

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my observation is that the people who are involved in america's national security, they take this work very seriously. they cherish our constitution.

the last thing they would be doing is taking programs like this to listen to somebody's phone calls. >> that was president obama just about six months ago defending a surveillance program that collects millions of phone and internet records for the national security agency or nsa. while debate rages over the surveillance today we heard a warning from a federal judge that could cause headaches for the president and his security teams. charles krauthammer is a fox news contributor and author of "things that matter," number one on the new york times bestseller week and has been for five weeks. the judge blocked the program as it relates to the telephone users who were complaining about the program. this judge is george w. wibus w appointee. he's no left-leaning judge. i want to show the viewer what is he said in issuing an injunction which is now stayed. so it doesn't take effect until the case is played out on

appeal. the fourth amendment is offended by general warrants and laws that allow sichs to be conducted indiscriminately. i cannot imagine a more indiscriminate invasion that the collection and retention of personal data on virtually every single citizen without prior judicial approval. he says i have little doubt that the author of the constitution james madison would be aghast. what do you make of it? >> i can imagine something more intrusive and that would be in the fsa listened to what was said. we are talking about the recording of the data as to when a call is made, how long it's made and to whom it is made. the reason this is an important case is because what we heard from the judge today and it is only a district court judge. >> the trial court level.

>> the circuit and the supreme court. this is no way conclusive. it is a warning. the reason is because it seems to reverse what has been the constitutional norm since 1979. there was a case in '79. smith versus maryland. the supreme court said there is no expectation of privacy about the data and records of a phone call. in other words you have an expectation of privacy as to the content of the call. since there is a third party that knows about the call, the length of the call, the phone and the company. there is no expectation that anybody will know about it. that's been the constitutional protection under which the program has proceeded. it could be that it requires revising. we'll see as the case works its way through the courts and up to

the supreme court. >> it will be interesting. this will go to the d.c. court of appeals. president obama placed two new judges on the court who are more left-leaning judges. the left, by and large, objected to this program. it would be ironic if the two judges wound upsiding with the left and not with the president on a key program. let me ask you about edward snowden. he leaked documents that led to the exposure of this program and others. he commented saying, quote, i acted on my belief that the mass surveillance programs would not with stand a constitutional challenge. he says the ruling is the first of many. >> if somebody has a constitutional belief in this country he takes the case to court and has it tried. he doesn't escape to china and russia where his secrets have undoubtedly been given wholesale

to the russian and chinese security agencies. then claim to be a patriot. look, i agree this is not a left-right case. it isn't only the judge who is a bush appointee. the plaintiff is a conservative. >> right. >> there are a lot of people sincerely and collectly on the left and right who object. libertarians on the right. civil libertarians also on the left. aclu types. we will see. i would like to see the resolution not happen in a court. leave it to the congress meaning the democratic process to decide to impose on it. if a court says it is okay that doesn't mean it has to be. let the people decide in congress assembly. that's what madison intended. >> they are the one withes who are supposed to be responsible

for keeping the faith. not exactly the judges. charles, thank you. >> pleasure. coming up, should your boss be asking if job seekers have been convicted of a crime? are you in favor of that? just ahead why that question on job applications could go away. plus the investigation into a decorated marine at risk of losing hayes career for what some say was just doing the right thing.

>> announcer: from the world headquarters of fox news it's "the kelly file" with megyn kelly. >> congress is planning a hearing tomorrow into the behavior of a marine whose career is now in jeopardy after he shared a warning about a

security threat, one that turned out to be true. major jason brezler saying he was trying to do the right thing but the brass didn't like how he did it. listen to this. catherine harris has the explanation. >> on the eve of his hearing fox news with with with a letter from six members of congress who served in the marines questioning why he could be discharged for trying to help fellow marines in afghanistan. it reads his battalion commanders during the event in question and today support him completely. who requested that he be criminally investigated and why. the marine corps reservist and new york city firefighter is facing a board of inquiry, the equivalent of an administrative hearing for warning marines of an insider threat in august 2012 an afghan police chief who brezler knew to be linked to the taliban and was a child predator. he's accused of passing

classified information through unclassified channels -- an e-mail account. his warning was ignored and three marines were killed by one of the afghan police chief's child victims. reporters say he's singled out to shield the marine who ignored the warning and expose it is under belly of the conflict. >> it really does seem to be a witch hunt in retaliation against jay sob for blowing the whistle to congress in an evident to prevent a marine whose family connections are more elevated in terps of the marine corps than jason's are. it is part of unlawful command influence plaguing the marine justice system at this time. >> we have asked for an updated response. a spokesman at the marine corps reserve headquarters in new orleans where the hearing is taking place told fox news he couldn't comment on the specific allegations but added a criminal investigation found he

mishandled classified information when he sent the warning to fellow marines on a personal e-mail account. >> unbelievable. thank you. >> you're welcome. >> joining me for more, lieutenant colonel alan west. this is unbelievable. this guy sent the warning. but he sent it via his yahoo! account as opposed to his official e'll be booted out of military? >> this makes no sense. if the warning had been heeded you would have three marines that would probably still be alive. he was trying to warn them of an afghan police chief allowed back on the operating base of the marines in helmand province. what happened was he has an under aged male prostitute, a servant to him, that somehow

ended up getting his ak-47, walked into the forward the operating base and gunned down marines who, because of the rules of engagement weren't allowed to carry weapons on their own operating base. >> what do you think is happening here? they are saying now in the letter who requested with this investigation of him? apparently his immediate chain of command didn't recommend punitive action the guy just used the wrong e-mail account. that's all he's accused of. >> you're right. it seems political correctness is going to over rule common sense. also over rule protection of marines. first of all, this young under aged, unveted boy should not have been operating on a forward operating base where our marines were stationed or any of the troops. the other thing is someone should have heeded the warning because he was assigned there in

helmand. he knew of the man but they want to cover it up and go after this marine who was doing the right thing. >> i want the viewers to know he notified his superiors of oh his error almost immediately after he committed it. not like he tried to hide it. catherine is reporting maybe this is a case of connection. the guy who didn't heed the warning may be with better connected. how is it resolved? how does he retain the benefits and so on that are due to him? >> the most important thing, we need to melt down the phones to call the come dantonio of the marine corps and the secretary of the navy. he should get a commendation for trying to do the right thing to save marines. those people who were responsible for the rules of engagement, the number one allowed a child predator to be operating a person that was -- had connections to the taliban as well. then for them to have the rules

of engagement that didn't allowed the marines to protect themselves t cultural sensitivities went over board and we'll punish the major for doing the right thing. >> talks about an honest mistake. he tried to rectify it immediately and it was all in an effort to save lives. this is a confusing case. good to see you. all the best to you. >> always a pleasure. merry christmas. >> and to you. coming up, new polling on the health care over haul. bad news for the president's team. a key architect of the health care law responds. plus a deadly car jacking in the middle of the holiday rush. this case is heart wrenching. the search is on for the perpetrators. what you need to know to stay safe. michael, tell us why you used priceline express deal to book this fabulous tel. wellou can see if a hotel is pet-friendly before y book it and i got great deal without bidding. and where's yoururry friend? i don't ha a cat.

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>> the husband opened the door then walked to his side about to get into the car, when two men approached him and demanded the 2012 range rover. justin freedan resisted and was shot in the head his wife naz wot injured but listen to what an employee heard. >> i just heard getting into the

car, from above me this loud bang. and all of a sudden, a woman screaming very loud. >> the mall was put on lock down until authorities figured out the danger had passed the range rover later found ten miles way in, from the mall in front of an abandoned nows newark, new jersey about 20 miles west of new york city with a major car jacking problem. 416 last year, up 44% from the year before. they're on pace this year to be beating last year's record now, police will only say that this appears to be a random car jacking. the couple does not appear to have been targeted >> awful. i waez trying to protect his wife, and he was in the car. on a somewhat related note there is an e mail giving

tips how to stay save. this forwarded to me and it talks about how for women remember elbow is a strongest part of the body. if you get in trouble, your elbow can be of use to you and they say women in particular in this case the victim was a man but women get into cars and you know when we're shopping and we look for packages and keys maybe will being for food, they say is that when you can be most vulnerable. get in the car and go. don't sit there. because trouble can follow you. any way. >> a flashlight is a good weapon in someone's eyes is very effective. >> we did a segment on that. and god for by the someone gets you in the car, they say don't let him just drive you to the second location. they say if have you to drive the car into something this is not something to consider, but driving into

something has a better chance of surviving than if the guy gets you to a second location. on that note, trace, let's move on, thanks a poll had a new round of bad news for the president's health care law. nearly four out of five people use private insurance is changing. say they believe for the worst. because of obamacare. a key architect of obamacare. thanks for that, john. that is a public perception now. is it reality? >> look. every year, since starting recording costs, costs have gone up. and spending going up. the deductibles have doubled over 7 or 8 years. health insurance getting less generous. that is why we need obamacare to protect individuals who are suffering. >> you know that the public doesn't believe that right now? this poll we're going to, this

poll says do you believe your prime yims -- premiums going up? yes. 69%, do you believe co-payments are going up? 59 say yes. do you believe your plan is expanding? only 21% say yes. vast majority saying we believe it's due to obamacare. >> in that case they're just wrong. we're seeing a trend going on for years, if you look since obamacare has been passed spending has grown at the slowest rate since recording datea. so in fact, if anything, health care spending has been going down, growing more slowly. it's just a question of bad press coverage. it's many people think trends happening otherwise are somehow due to obamacare. >> some people saying when going on health care.gov they don't

qualify for subsidies. so that is not all imaginary. is it? >> no. when going to individual markets this poll is about people's employer insurance. 80 plus percent is just not really affected by the law. when you talk about those individuals with insurance there is a small number of people seeing higher rates. there are larger numbers of people who goring to see lower rates. over all, the evidence is that most people see lower rates but not all smchlt see higher rates. >> let me ask you about. that we're talking about some in individual markets. we have a green room putting numbers at close to 6 million now who have had cancelled policies it's tough to say how many are cancelled smchl did comply with the president's reported fix. sort of called up a portion of that and said never mind you're not cancelled

we don't know what number did. that but tonight learning that aetna says it's not going to go along with the president's fix. do you believe that we're looking at a january 1st event where some large portion of the american people are going to be uninsured when they were insured a couple weeks earlier? >> i don't think a large portion. i think it's going to be some, but a small minority. i think large shares goring to find they can get insurance that is better and/or cheaper but some are going to struggle. that is unfortunate to this web site delay z i know administration is doing everything they can to help those groups >> what do you make of the fact the administration is urging to give more time to pay? and to let patients see current

doctors? his criticism is is that this is no way to run a railroad? >> this is problems for the web site there are some small business people for whom we're going to have to try to do awkward fix buzz they're short term fixes which have to last a month, two months. people will see benefits of the law. >> good to have you back on april 1st, you tell us whether that is april fool's. >> thank you, professor. >> thank you >> should a boss be asking applicants if they have been convicted of a crime? why the question could soon go away. and boston globe report says the boston bombers may have been mentally ill. how do you think victims are reacting to that? our panel takes that on, next. [ male announcer ] e new new york is open.

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a new report out by the boston globe is upsetting some of the boston marathon victims. the report follows the globe's five-month investigation. it that the tsarnaev brothers, in particular the older brother who is now dead, may have been mentally ill. that he heard voices. joining us now, fox news legal analyst, ellison barber with of the washington free beacon. i heard victims of the bombing

saying what it was like in the tsarnaev house. the victims say how would you like to see how it is in my house now that i have lost my leg and talk about mental illness. do we care? >> i don't think so. clearly they were mentally ill. no one does it with a normal sensibility to they will. do i care that they were mentally ill or grew up poor? i'm tired of people doing atrocious things and being given excuses for life. they disrupted a national event. this guy, we know what he did. >> talk about how the brothers were heirs to violence and dysfunction running back several generations. the parents had psychiatric care but didn't get help for them. >> murderers, sociopaths. why are we talking about them?

s the older one is dead. they talk about the younger one grappling with mental illness and the father may have been brutalized. who cares? >> don't we care because we want to spot these guys and understand warning signs prior to -- >> it's fair to want to investigate criminals. there is a reason you have crime reporters. i would suggestion that this is presenting rose colored facts and providing bullets telling you what to take away from the investigation. so the idea that they are masking this as journalism is a misnomer. they say we did it for five months and we found this was a misconception and this was. that's telling a story you want told. >> the victims are upset. we don't need to add to it. now out in san francisco, for a while now, they have been banning the box on unemployment applications where they ask if you have been convicted of a crime. for a long time it's been you

can't do it as a government employer. now they are expanding it to private employers. this is a trend emerging in more states. let me start with you as a lawyer, mercedes. do you believe the box serve as purpose. do you believe they are making a mistake getting rid of it? >> undoubtedly. it is important to have a safe work environment. if not they get sued and liability flows from it. they have to find out if someone has a criminal history. because they may not be the appropriate candidate to work in the work place. that's critical. i say it all the time. i draft these policies. >> is it convicted? >> convicted, not arrested or charged. >> exactly right. that's where the analysis goes. is it something that could prevent them from coming in and make it dangerous for other employees. >> i believe in second chances but also in full disclosure. some people may have committed crimes when they are young.

maybe a drug related crime which is getting too much prosecution around the country now. the employer needs to see and ask the guy how he's dealt with it. what have you done to improve your life since that time? i don't think we should hide it from employers. they have to make judgment calls. the job market is competitive. >> you can argue that the guy with the criminal history need as job to stay out of trouble. it's to society's benefit to keep a convicted felon or whatever employed. >> i think honesty is a part of the rehabilitation. by removing the option for people to be honest about the criminal record which you typically have an area to explain it. >> can't they say it orally? >> in theory. but you have someone take time out of business to interview them. time is money. >> don't ask, don't tell has never been a good policy. >> the box is a deterrent to commit crimes.

not only do you have to serve your time. you could be burdenered by this. we have pressing news. howard stern had a contest. >> no. >> he did. whoever won was a grandpa, got to go to the bunny ranch. >> i heard it. i'm not anybody's grandpa. >> you tell us about the contest. >> three elderly men came in with heart wrenching stories. told them to howard and the panel. they chose one to go las vegas to the bunny ranch. >> the brothel out there. >> it's legal. >> at the end of the day they couldn't choose. the guy, his wife died 11 years ago. he had not -- >> this particular guy won. >> they all won. >> goes to vegas. >> he goeses to vegas, chokes on a piece of steak the night he was going to have an encounter at the bunny ranch with two

ladieses. >> you're the lawyer. is there a way for his family to sue -- >> no, no. >> saying this is foreseeable. he was so excited? he said he needed the >> you're the lawyer. is there a way for his family to sue -- >> no, no. >> saying this is foreseeable. he was so excited? he said he needed the energy. >> 86 years old, hasn't had sex in ten years, he needed a big steak dinner for the power. >> at least he got half the prize. he had a nice steak dinner. >> can i have his ticket to howard's birthday show next ow month? >> stop it! >> i love that the grandson he said, grandpa died, but i will r step in for him. can i use his coupon and he did. >> the back half of the show is about safety tips. it is important to cut your an i steak. i know somebody else whose family had this happen.it it's very hard to dislodge te steak. >> i tell my kids, don't talk with your mouth full.

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♪ i want to be rich >> did you get your ticket? the mega millions is now $586 million and growing. trace gallagher has the update on how to win it. trace? >> the jackpot rolled over 21 times. it is now the fourth largest jackpot in u.s. history. because there is such a ticket buying frenzy out there, by

tomorrow it could be the largest in history. surpassing $656 million. if it keeps rolling over until friday it could hit a billion dollars. in october, mega millions changed the game, increasing the number of white balls from 56 to 75. decreasing the number of mega balls from 46 to 15. so the odds went from 1 in 176 million to win to 1 in 259 million to win. you're wondering how the odds stack up, check it out. your odds of being struck by lightning, 1 in 775,000. being attacked by a shark, 1 in 11.5 million. consecutive holes in one, 1? 156 million. just imagine. a billion dollar potential jackpot if this thing rolls over until friday night. >> so if one of the tickets comes in, new york or new

jersey, then i have to worry about being attacked by a shark and getting struck by lightning and all those awful things i hope won't happen. thank you, trace. good news, bad news. we are taking your thoughts on that. coming up on "hannity" at the top the of the hour -- >> these navigators are out selling things they do not understand. they cannot certify to people who are buying them. i believe the president and secretary sebelius should have an advisory notifying consumers across the country that they do not have a worthy product. it is a deceptive sales practice. [ engine rev] ♪ [ male announcer ] oh what fun it is to ride. gethe mercedes-benz on your wish list at the winter event going on now -- but hurry, the offers end december 31s [ santa ] ho, ho, ho! [ male announcer ] lease the 2014 ml350 for $599 a month at your local mercedes-benz dealer.

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lots of lots of people tweeting safety tips. follow me@megyn kelly. see you tomorrow. tonight your personal health records, your social security number and your identity could be at risk because of obamacare. those explosive allegations are being levelled in a new house oversight committee report. the lawmakers behind the investigation are moments away with the disturbing details. that's just the beginning of this jam-packed edition of "hannity." >> very proud of being a socialist. he was very outoh spoken on political views. >> why is the main stream media hiding the liberal beliefs of friday's school shooting suspect? anne cou