the ask dennis where you can ask miller any question you want. send it to us next wednesday. again, thanks for watching us tonight. "kelly file" is up next. i'm bill o'reilly, please remember the spin spots here. we're definitely looking out for you. >> i'm shannon live in new york city and tonight. >> i want to know who is going to jail? >> a court order turns up explosive documents in the irs scandal and questions about whether one senator will be in legal trouble for his role in this mess. >> we take the allegations seriously. >> reports tonight of top democrats worried how the white house is handling the scandal. >> we do not get the care necessary to give the proper treatment we need. >> is this about to go from bad to worse for administration? >> and then. >> does she not have the right to say what she means without being slammed -- >> a talk show host catches heat

in the controversy over a gay kiss on tv and then gets national attention for walking off her set. amy kusnyer is here tonight on a busy night on the "kelly file." breaking tonight, a closer look at just released e-mails from the irs controversy raising the questions about whether a top democratic senator went too far and could now be facing legal trouble. we welcome to the "kelly file." i'm shannon breen in for megyn kelly. caught encouraging the internal revenue service to block the work of force, leaven repeatedly encouraging the irs to harass tea party groups and potentially violate federal law. leaven was specifically upset about 12 groups in particular, 11 conservative, one liberal and now there are questions whether

his demands of the tax agency may have crossed a legal line. joining us now to talk about it, the national review contributing editor and former prosecutor. andrew, great to see you tonight. >> nice to see you. >> how would this work? has come to light, there were numerous contacts, hey, i need a response. he gave tight deadlines saying i want to hear back and know what you are doing and here is a little advice. >> you know, look, there is an inspector general's report and no question what they did was inappropriate. i think it was constitutionally inappropriate. it violated statutes. it probably violated and certainly violated internal procedures. he aided and abedded but not talking about a criminal statute. did he encourage them? sure. i think worrying about the legal ramifications of it is very secondary to the political accountability question and the

real danger to people's liberty of having members of congress exercise the executive barrage in the administrative state's authority. that's what people ought to be concerned about and what that does to our constitutional rights. >> that's what something james madison was worried about, it's why we have checks and balances and why the founders set that up. is it your worry there is at least the appearance a legislator was telling a federal agency how to do it job. >> the legislator telling them how to do their job is not like me telling them how to do their job. he has a lot of aswags over them. they can make the agency's life really miserable and uncomfortable. now, as it happens, i think they are all on the same page and that frankly is the real danger here because you have not just the congress, you have the political movement which is exercising the levers of power

that is contradictory in free speech. >> so we got a poll on this, at least on the issue of do you trust the federal government? folks were asked that and that encompasses a number of people and lawmakers and agencies, do you trust the federal government? 37% said yes. 60% said no. it seems like some of what is going on gets the average american's attention, they have questions whether they can trust the government. >> this is with the media carrying their water. you wonder how is it as high as 37%. >> that's the tweet i'll get. people will say who are the 37%? >> if this is a republican administration and there were these kinds of abuses, i don't think they would survive this long but there would be more outrage about it. the fact the press hasn't spotlighted it, probably has the number 37 as high as 37. if it has more exposure, i

expect the number to change. >> we got more response, i'll read part of it, they say he believes the irs should entors the law against any group, liberal or conservative and did point out one liberal group while violating the statutory group for social welfare and not engage in partisan politics. his office says he was going after anybody he thought was violating this. >> it happened that 11 out of 12 of them were conservatives. that's great, but at the time he was acting, what he was pushing for was for these conservative organizations predominantly to be harassed and that i think is the thing to focus on. >> yes or no, anyone prosecute him for any of this? >> i doubt it, but, you know, it's a long haul to get to the bottom line here. i think right now no, there is no crimes but this is a political wrong and that's much

more consequential. >> andy, always good to see you. thanks for coming in. also from capitol hill tonight, questions about what is behind senator harry reid's new call to change the u.s. constitution. a plan that would also change how our elections work. chris is fox news digital politics editors, all right, chris, i just want to question the fact that we hear a lot from the senate majority leader, he took to the floor and feels very strongly about these issues that congress should have more control and about how people should spend money in elections but there are parts to the constitution, rights he doesn't seem especially fond of. >> or at least the interpretation of the supreme court of the united states of those rights as it relates whether i can spend money to say stuff about politicians or any american can spend money to say things about politicians that politicians don't like. >> amend the constitution. >> i'm calling it he wants to

amend the united states constitution as a political ploy to continue voting about and talking about his two absolute favorite boogie men of this election cycle, charles and david koch. they are rich. their family's business in the petroleum industry is very successful and they are very consecutive and they are trying to make harry reid not the majority leader. harry reid doesn't like that. he's trying to talk about them as much as possible. to keep him as a majority leader, they spend a lot of money attacking the koch brothers out in public and in the cases to make them the center. this is an excuse, the constitutional amendment is a way to force votes in which democrats can say, something that sounds good to a lot of voters, we should have much more heavily regulated elections, maybe even the government should use your tax dollars to finance elections, get the quote, money out of politics because it worked better for harry reid

when unions were basically unanswered. >> that leads me to the question there are a lot of rich democratic donors -- >> oh, boy. >> they want to have a voice and support harry reid and other folks. how do you think they are feeling about this tonight? they get die luluted and taken of the mix as much as a gop candidate. >> the moment of zen will come at the moment in which democratic patrons who are many and by the way, increasingly powerful inside the party. harry reid is increasingly beholding to the billionaire donors that are bankrolling his effort to stay the majority leader. the moment of zen for this election cycle comes when an ad financed by billionaire democratic donors attacking republicans for opposing a constitutional amend the to limit the influence of billionaire donors, that will be when we reached, will have

jumped two sharks by then. >> i'll go to your office and we'll hold our breath told. always good to see you, thank you. >> you bet. breaking tonight, aggressive wildfires raging across southern california at this hour and we have dramatic terrifying video from inside a car actually driving through one of those fires in san diego county. watch this. >> wow, there it is right there. there it is right there. holy [ bleep ]. holy [ bleep ]. >> oh my god. oh my god. [ bleep ]! holy [ bleep ]! [ bleep ] oh my god, dude.

>> that is right there. >> powerful pictures. grace gal llagher is live with e latest, hi, trace. >> there might be a tent fire burning in san diego county on top of the other fires burning and keep in mind, we don't know much about the new one. the focus is on cocoas fire, it's only 5% contained and the fire chief there says this thing has shown explosive new growth and it's still growing well over a thousand acres right now threatening thousands of homes and forcing tens of thousands of evacuations and that is on top of the tens of thousands of san diego people forced out of their home. this homeowner left late today. listen to him. >> things seemed pretty calm and all of a sudden, i heard the

sirens, you know, coming down the street and looked up and that thing was at the top of the ridge and coming fast. so i said get out now. >> top of the ridge, it was this fire tornado that actually forced him and his neighbors out. so not only is the fire creating its own weather now, it's being propelled by hot, dry, santa anna winds and those are again, expected to shift tonight giving firefighters fits. the fire crews out there are spread very thin, as you might imagine and the fire chief says they are all exhausted and hoping for cooler weather tomorrow, but it will be another long, exhausting night tonight. shannon? >> a lot of hard work and folks risking their lives out there, we know, minute by minute. trace, thank you so much. coming up, susan rice talking about the investigation into the terror attack in benghazi and her response is setting off a fire storm of criticism, plus. >> she is strong. she is doing great.

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a bit of a bombshell from former president bill clinton and just about everybody missed it while the former president was talking about his wife's health and recovery from her concussion, he let a little news slip out. >> i was sort of dumbfounded. they went to all this trouble to say that she had staged what was a terrible concussion that required six months of very serious work to get over. >> six months? that's not exactly what we were told at the time. talked about it with co-host of "fox and friends weekend." tucker, good to see you, i covered this, you covered this, everybody at fox and other networks covered this.

she fell ill in the beginning of december, blood clot, hospitalization. in january a state department spokesperson said she made a full recovery. that's not six months. >> has there ever been a husband more passive aggressive than bill clinton? >> do you think he's undermining her secretly. >> it's unbelievable. i'm sure it's not intentional where time after time he made the wrong kind of news trying to help her campaign but undermining it and detracting attention from what she was trying to say to him and this is yet another example. he's trying to reassure us that she's fine and in so doing tells us that she was six times sicker than she claimed to be at the time, it was not just a concussion but terrible concussion and she was almost gravely ill and apparently, it's true. >> if he said it, karl rove got in a ton of trouble for talking about her hospital stay and said it's something she'll have to

talk about if she runs for president. he got blasted for that. six months, i mean, that's definitely the first time i've heard that. >> well, you know, i hate to engage in freelance psycho analysis but what is this? he is supposed to be the booster in chief. this is a guy famous for his facility with words, who choses each one carefully and to drop a bombshell that hurts her tells you there is something really weird going on here. i won't speculate what this is about s about, but it definitely is bad news for hillary clinton. >> free analysis from dr. carlson. let's move onto the next top center of the ben goz sghazi controversy and she's weighing in on the attack that killed four americans and her response making more headlines tonight. watch this. >> what more is there that the administration has done or said

that we're not aware of right now? >> dang if i know. >> tucker, people are laughing and it makes me think of, you know, tommy's comments to brett bear a week or so back, dude, that's been two years ago, even if they are truly concerned four americans died, that attitude comes off as flippant, laughing, the appearance regardless of how they feel does not provoke a lot of empathy. >> it's also coordinated. it's never a coincidence when leading figures in the democratic side have the same message. it is a matter of planning, someone thought through how do we respond to this because it is potentially a real problem for the hillary clinton for president campaign but for the white house, basic questions starting at the most bar sisic,t were they doing there in the first place.

there is no reason to have dozens of cia officers there except if they are doing something big. but to hear someone whose at the very center of this controversy reassure us asking a bunch of questions about it is pointless and we'll not learn anything about her misdeeds or wrongdoing, that certainly is a surprise, right? >> let's talk about a poll that asked folks, you know, what do you think about congress establishing a special committee to investigate benghazi. 67% of those said they approve, 28% disapprove. if the folks involved think they can say it's a witch hunt, ridiculous, a waste of time and money, 60% of americans don't seem convinced. >> as of now. huge percentages, way more than half on both sides, republican and democrat think politics are playing a big role in this. they could mishandle it. i'm totally for it. i'm always interested in learning more about any mystery and benghazi has mysteries, but

they could screw it up, there is no doubt about it, i got to be honest, they could. >> there are those concerned the gop will over play its hand and some will view it that way. it seems like there are serious folks that have been appointed, not a lot of show boaters, we'll see. we know the house speaker wants this to be taken seriously by everyone involved. we'll see if democrats get involved, too. good to see you tonight. >> thank you, shannon. >> all right. a dallas talk show hosts finds herself in the hot seat over the debate over the gay kiss on tv. she's live here with us tonight. and propalestinian groups stage protests on campuses all across the country and the gusts say they got ugly and very anti semimet tick. his story is next. ♪ ♪

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free, free palestine. >> bear it down, bear it down. >> those were members of the students for justice in palestine staging a protest at nyu today to call attention to quote, israel's on going project of ethnic cleansing in the occupied palestinian territory. according to my next guest, they spread anti semi'tis m and across the country and posting a photo on the tumbler website that was so disturbing, we cannot show it to you. he was a student at brandeis and at the event today where he captured that video you saw.

daniel, welcome. tell us a little more about what you saw today because they say this is a protest against israel's policies, not the jewish people. >> they can lie and say it's about israel or specific policy but says israel needs to be wiped off the map. they say the state needs to be torn down, tear it down. >> that's what they said? >> yeah, it's funny that people continually call students for justice in palestine propalestine. they are not propalestine, they are antis-semitic. they do nothing but demonize the state and at ucla they had an ethic statement running for student government from going on trips. this is bigotry, harassment and a sense -- a sort of gorilla warfare on campus where they intimidate students into

silence. >> they said what they were doing today had nothing to do with jewish identity, everything to do with israel's policies, and displacement of policies that render a normal life. impossible. >> it's funny because my sister lives in israel. this is personal. they put an equivalence between hamas with counterterrorism activities israel is forced to engage in because of the radical proterror stances that a number of, you know, government officials in the palestinian authority promote and what is going on, this group is indindo tra nating students on campus. israel is a beacon of light into a region that desperately needs it and holding the jus aews and one but the jews to a standard.

>> hamas is identified as a terror group, israel, our closest allies in that area. we know this is going on in campuses across the country and welcome the debate. we thank you for bringing this to light and joining us tonight. thank you. >> thank you so much. big news tonight on the most-watched fight since frasier versus ally, beyonce talking about the brawl between her sister and husband in an elevator. her story about what happened is just ahead and amy kusnyer got national attention after she was slammed in a debate over a football player kissing his boyfriend on live tv. she's here with her side of the story. reports of top democrats worried about the white house, how it is handling etscandal. >> i had a war veteran move from tennessee to phoenix to get an appointment. his appointment was set out eight months, eight months. sked a simple question:

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breaking tonight, new fallout after eric shinseki appeared before congress testifying about allegations of misconduct at the phoenix va medical center that may have killed dozens of vets. >> any allegation, any adverse incident like this headacmakes as -- makes me mad as hell but at the same time it saddens me because i know out of those adverse events, a veteran and veteran's family is dealing in the aftermath and i always try to put myself in their shoes. >> even before that testimony held were new focus shifting to the white house. a new report quoting a top

democratic senate aid claiming the president's team is more concerned with the politics of the scandal than getting to the bottom of it. saying quote, this isn't about covering your blank, it's about taking care of guys that went to war so you didn't have to. pete did go to war and he's an iraq and afghanistan veteran and another veteran among us, lieutenant colonial ralph peters, a fox news analyst. welcome to you and thank you both for your service before we get started. >> i was only a veteran of german burros. >> a veteran nonetheless. colonial, i'll start with you. there are a lot of folks calling for the secretary to step down. he's a decorated guy, he is an experienced guy. the va is a mess. what say you? >> first of all, i certainly feel our veterans deserve the very best care this country can give them at any cost and i certainly believe that the va has a long way to go to continue to improve, but you can't blame

general shinseki for 50 years of under funding and neglect. he can't fix that in five years, and shannon, i am not going to join the lynch mob, the washington lynch mob to not only get an honorable veteran, lost a foot, served in uniform for almost 30 years, retired as chief of staff for the army and you know what, shannon? he could do what so many senior admirals do, he could have got out and prostituted himself to the defense industry, made millions of dollars a year but he didn't. because he believes in vets and wanted to help, general eric shinseki took the most thankless job. he's been trying. he's an honorable man trying to make it bets for vets and i hear people pouncing on him they themselves were too good to serve and i ask those who want general shinseki fired who do

you want to replace him with? >> do you think it's too much of a mess, no matter how honorable or dedicated the leader is, pete, it's too much for one person to go in and resolve in any reasonable amount of time. i know you didn't seem impressed with his testimony on the hill. >> i was not. this problem is unfortunately however much larger than secretary shinseki. you need a reformer at the very top, secretary shinseki is not. i think he's an honorable man. i think colonial peters is dead wrong. he has not been the leader that department needs. he's not been a forceful reformer that has cut through red tape and tells it like it is and holds people account nl. no general in charge of a unit that fails continually for six years keeps their job. this is not a lynch mob. this is a concerted, this is a look that we've had at this

department for quite sometime. our organization called for him to step down for over a year. this is a department that doesn't answer questions from congress, doesn't answer questions from the media and shuts down whistle-blowers and stone walls those trying to provide oversight and doesn't provide timely care and scandals of secret lists. he calls them isolated incidents. frankly, unfortunately, it was embarrassing testimony today and i think the manifestation of bu bureaucracy, a change at the top is needed and a change throughout is needed. >> colonial, i want to give you a chance to respond but i want to read to you from a republican out of cancer kns not happy with the testimony today. he said what we've learned is the secretary has had access to dozens of ig reports, congressional inquiries, inputs from the american legion and indicated in his testimony that he didn't know that much about the content in those reports. what do you make of th colonial? >> first of all.

general shinseki is a quiet man. he's not a grand stander. he's not in this for fame or fortune by any means and again, tell me who you're going to replace him with. general shinseki knows the military, knows veterans, knows how to run a large organization but it's not his fault the work force is a prisoner to unions. if you want to reform va, don't fire shinseki, give him the authority to fire the under performers. what about the people in phoenix that need to be fired? obama won't do that. enslaved to the federal union. >> yeah, we all know that it is not easy to terminate a government employee, pete? >> colonial peters is right. secretary shinseki, he could push more against the grain and pound his fist on the desk and try to do more to force the hand

of the administration but hasn' gone in and really tried to do a lot about it except throw more money at the problem. the problem is managers and employees cannot be fired from the department of veterans affairs, the house and senate to change that and when secretary shinseki goes and he will soon, you got to replace him with someone outside the system empowered with the tools to do it, to reform a va that is good at overwhelming secretaries which is what happened here with shinseki. >> shannon, only -- >> quick, we're out of time. >> administration does not care about veterans, they care about politics. >> it is about politics. >> he publicly said he does care about that. we'll watch and see what the administration says. thank you both of you. >> thank you. we're seeing new video from an event at the american legion in phoenix, angry vets and loved ones invited to speak out about mismanagement at the va. more than 200 people packed in. check it out. the town hall was supposed to

run one hour, instead, it ran four hours. here is a little bit of the reason why. >> it just seems so unfair that after all they have been through, that they have to wait so long. >> i have had no luck at all. i mean, i've called there constantly from november to this month and not been able to get in. >> these problems are not the fault of the doctors or nurses or x-ray techs or anybody in the medical end of it. they are as frustrated as we are. >> we veterans don't get the care necessary or diagnosis necessary to give us the proper treatment that we need. this is what we get. [ applause ] >> amber is a u.s. army helicopter pilot that served in iraq and afghanistan, a concerned veterans for america and attended the shinseki

hearing today. amber, again, thank you for your service. i have a family that is full of veterans and those who are currently serving. i got to imagine you feel even more so than i do furious about this and seeing these veterans who served our country desperate for medical attention, and unable to even get in the door. >> yeah, you're absolutely correct, and i am more than disgusted at secretary shinseki's attitude he's had since the scandal broke in phoenix where 40 veterans are dead and his lack of leadership that we've seen. he did nothing but dodge the senator's questions today for two hours. he sat there and avoided answering their questions, and at one point, as you saw the clip where he said he's mad as hell, he looks like he was going to fall asleep. he's doing damage control and not, he's not trying to get to

the bottom of what is hurting the veterans in the va. >> do you think being successful in the military which pervades amazing skills to do other things is maybe not the right fit for a bureaucracy, something this size, in the military you can make decisions and, you know, execute them immediately and this kind of situation, he's dealing with something much different and as colonial peters said, if not shinseki, who else? who do you feel would be best equipped, if we're not naming a specific person but the background they need to tackle this mess. >> i think a retired career military officer is an excellent person for the job. they understand leadership. secretary shinseki was sweating it today and it's because he knows better. he knows that as a career military officer, he served in combat, retired as a four-star general. he knows if people die on your watch because of negligence or poor leadership or bad decision making, it goes up the chain of command and people are held

accountable at the top tier levels. generals had to step down or takerly retirement because of something that happens in their unit, nay were not directly responsible but at the end of the day, they are ultimately responsible. just because this is happening here in america with secretary shinseki as the head of the va and happening to older veterans, why should he be held to any other stander? >> we thank you for your service and your time tonight. >> thanks, shannon. >> a talk show host catches heat in the controversy over a gay kiss on tv and gets national attention for walking off her set. she'll be on this set next. >> i'm shaking my head because people don't have the right to express the way they feel if it ocho pends somebody else. i am, i live in america. i still feel like i have the right of freedom of speech.

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when openly gay football player michael sam was drafted, he kissed his boyfriend in celebration on live tv but started a debate that went to a dallas morning show "the broadcast" where a show didn't hold back. >> there has been an nfl player, can't remember the name who

tested horrible after he saw that on espn and a player that texted something derogatory about seeing that kiss michael shared with his boyfriend in celebration, and they came down on those players who didn't have nice things to say with fines and basically, letting them know that hey -- >> they were fined? i didn't know that. >> they were fined for expressing how they felt. >> why are you shaking your head? >> i'm shaking my head because people don't have the right to express the way they feel many it offends somebody else. i am -- i live in america. i still feel like i have the right of freedom of speech, and i don't have to be penalized for my own opinions. >> here is the problem, you can't say what you feel without being persecuted if it doesn't go along with main stream you're going to be pegged. >> you can't say what you want to say when you're part of an

organization that has the right to tell you you're working on behalf of our organization, you're not allowed to say that. >> when parents do not have a choice whether or not they want their children to see this, it's wrong. >> but the same thing when you turn on community and parent hood -- >> don't watch any of that. >> it's being pushed in faces. >> had he been kissing his wife, would it have bothered you? >> get a room. >> would it be truthful it would bother you just as much if he was kissing his wife -- >> we wouldn't be talk about this if somebody kissed his wife. >> does she not have the right to say what she feels without being slammed -- >> it's an argument. >> why don't we go to midland? >> i don't think there is any argument about -- >> i'm done. >> okay. and you're going to leave. >> no, i'm going to go to midland. >> okay. >> the woman said she was headed to mid land went beyond that. amy kusnyer is here in new york.

>> back from midland. >> this is a long way from midland. let's talk about this. it sparked a debate and a lot of conversation. >> it did. >> i got to tell you, talking with a lot of different people, you worry about so much of what you watch in sports, i feel like we watch a lot of espn in our house, there are victoria secret commercials every five seconds, go daddy is provocative and beer commercials with people falling out of clothes, are you concerned about the bigger conversation of sexuality being thrust on kids or were you specifically concerned because this was something that maybe you didn't want your kid exposed to? >> in this case, we were specifically talking about the michael sam incident, the kissing incident and so we were really focussing on that and what came to my mind initially is i didn't feel it was appropriate. it was actually over the top. espn used it as an opportunity to put out shocking video when

espn is a sports network that families watch. we've got children that play sports. they watch espn all the time. it bothered me they used this as on opportunity to promote their left wing agenda in my opinion. >> it's a historic moment, congaslations. >> absolutely. >> to get drafted is amazing regardless of who you are, but as you said, this is your particular opinion. >> uh-huh. >> do you worry we're getting to a place if your opinion does not agree with other people, you can't share it? >> i don't worry about it. i know that's true. that's true. if you are trying to maintain traditional values and views in your home and if you share them, you're going to get blasted because it goes against what is politically correct. >> you've taken a lot of head on social media. >> yes, i had no idea, i'm

shocked at the out landish and most -- if i told you -- >> we couldn't put it on the air. >> i can't put it on the air. death air.pe death threats, rape threats, fi. petitions to be fired. it's insane.me, all it is, it's a voice screaming out against something that for me is traditional views. >> they aren't always in vogue.e >> true. >> we would hope in this country we can have conversations and disagree and do that politely. coming up, beyonce breaks her silence for the first time about that fight between her sister and her husband. unlimited cash back.

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built for business. breaking breaking tonight, jay-z, beyonce, and solange breaking their silence. what do they got to say? trace gallagher knows. >> they won't tell us exactly what that fight is about, only saying they have now moved beyond their differences. quoting here, jay and solange each assume their share of responsibility for what occurred. they acknowledge their role in this private matter that's played out in public. they both have apologized to each other and we have moved forward as a united family.

solange was not intoxicated before the incident happened. new york news says the fight was over a fashion designer who was apparently too cozy with jay-z at a nightclub earlier in the evening. solange called out rachel roy and jay-z called out solange saying she was out of line and solange didn't like that. the person who leaked those tapes has been fired and could be prosecuted. >> we'll be right back. coming up on "hannity" at the top of the hour -- >> this is a president who sent many of our men and women to iraq and some of them are getting this shoddy treatment in the va. [ male announcer ] people all over the world know us,

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those we lost live those we lost live on in us in the families who love them still, in the friends who remember them always, and in a nation that will honor them now and forever. >> president obama earlier today at a moving ceremony dedicating the national september 11th memorial and museum in manhattan.

survivors, victims' relatives. the museum officially opens to the public next week. thanks so much for watching tonight. this is "the kelly file." and this is a fox news alert. the secretary of veterans affairs shinseki does grilled on capitol hill earlier today over the disturbing allegations that dozens of veterans died while waiting to receive care at a va facility in phoenix. for the very latest, we turn to ed henry. >> good evening, sean. as you noted, secretary shinseki took the heat today. they're wanting to know why president obama is not taking a more hands-on role in