ms. megyn up next. i am bill o'reilly. please always remember the spin stops here cause we are definitely looking out for you. breaking tonight in less than 24 hours on one of the biggest stages in american political life with millions watching the president will propose his huge sweeping new tax hikes that he must know will never ever become law. tonight, we have a new look at why he may be doing that. welcome to "the kelly file" everyone. i'm megyn kelly. president obama set to deliver his sixth state of the union address and his first since republicans swept the midterm elections. the centerpiece of his speech a plan to raise $320 billion over ten years from a host of new tax proposals. and both the president and republicans know that the plan

will never become law. chief white house correspondent ed henry is live at the white house tonight. hey, ed. >> good evening, megyn. that's the bottom line, the president will run into a brick wall of opposition not just from republicans but moderate nkts in the senate as well not pleased with these tax hikes. what this is really about is a president building his legacy and setting up the message for democrats heading into 2016 because he by his own aide's account is feeling strong about the economy recovering and wants to put it out there that he's for the middle class, republicans are for the rich. in fact the message they put out today in a preview video of the president from the white house was basically saying that this is all like 2012, campaign commercials when he was talking about the middle class and how he won on a platform of taxing the rich spending more money and trying to have tax cuts for the middle class. yet the president you remember tried that message in the midterms of 2014 and lost.

listen to his pitch today and what he said back in october. >> this state of the union gives me an opportunity to present to the american people now that we have fought our way through the crisis, how do we make sure that everybody in this country, how do we make sure that they're sharing in this growing economy? i'm not on the ballot this fall. michelle's pretty happy about that. but make no mistake these policies are on the ballot, every single one of them. >> you heard the president say the policies were on the ballot. he lost those midterms. that's why republicans are saying they're the ones with the mandate to stop this. the other big issue for the president, series of polls suggests the public is nervous about national security. in fact two obama officials this week said they fear there's going tor a paris-style tr ror attack here in america in the next few months. the president has been talking a lot about the state of the

economy in recent days. >> ed henry, thank you. one of the popular theories about the president's plan to talk about a doomed tax hike comes from "new york post," tuesday night's state of the union address could be the first one in history deliberately designed to solely generate a pav rove yan rage response in members of the administration's own policy. is that it? trying to stoke the fire sns. >> there's plenty of truth in that. this president, there's nothing new here. this has been his strategy throughout his presidency. he came into office promi fundamentally change not just the way the country worked but the republican party to break the fever within the republican party and to push and goad republicans. but this is really about for every person doesn't care

whether or not something passes cares he has the argument, cares he has the talking point. let's remember these are initiatives that not only couldn't have passed a divided congress, probably couldn't have passed an all-democrat controlled congress. the very idea of taxing the rich to redistribute the wealth with targeted high-end tax cuts is something that democrats shied away from when they controlled both houses of congress especially when it came to doing obamacare special high end taxes were rejected. this is something the president wouldn't have brought up when democrats controlled the senate because it would have forced painful votes. when you think about doing something like increasing taxes on college savings funds, increasing the death tax and inheritance tax, those would have been non-starters. >> are you suggesting he's not a true believer that these are the way forward? because it seems like the president's never seen a rich person he doesn't want to tax more. >> well, the donors i don't think he wants to tax more. >> yes, he does. he does too. >> that's true.

that's fair. the president i'm sure believes these things. and i'm sure when we go back to his original budgets way back to what he was talking about it was even more aggressive than this in terms of what he was talking about in the abstract. i'm sure he's a true believer. but the point is he is not interested. this is not about passing legislation. >> why not? what happened to the message that the american people were sending in that midterm victory they gave to the republicans was they want us to get things done. okay. so let's start with some proposal that will never get done. >> well, remember what the president said. he heard the people who voted but he also heard the people who did not vote. and as it turns out the people who did not vote the president determined wanted him to stay the course and continue to troll republicans. >> right. their message was also loud. before i let you go his approval rating is up 50% now according to abc news and "the washington post." why is that? because of the economy? >> well i think very shorthand i bet if we got gasoline down to $1.95 his approval ratings would

be at 60%. >> i saw it $1.99 this weekend. >> well, buy some for me. but for the president the improving economy has helped him a great deal no doubt. but the other thing that's happened is people are ready to move on. they're ready to be optimistic. they want things to get better. they're ready to see around the corner. unfortunately with what he's setting up here we have the same dynamic in the past insoluble conflict with congress ends up in a stalled cycle. >> oh, joy. more on this tomorrow night we have a special "the kelly file" right after state of the union, chris. thank you. one more plan on this tax hike plan and this suggestings that this is the president's attempt to send a message about the policy he wants his party to stick to. bret stevens is a "the wall street journal" columnist. good to see you tonight. >> good to see you. >> the policy he's going to suggest tomorrow -- first of all, he doesn't like the way rich americans are investing

their money and leaving it for their children. and he feels tax hikes will encourage the wealthy to more productively reinvest their resources. he also feels that when you saved enough to retire on $210,000 per year in your ira or 401(k) you have made enough and he will then say you should no longer be allowed to contribute to your 401(k). so king obama has it all laid out for the wealthy americans. be more productive with your money and i'll tell you what's productive. when you've saved enough for $210 a year you've saved enough, out you go. >> i think the president just signed on to the elizabeth warren for president campaign as her campaign adviser. >> how so? >> this is straight out of the soak the rich elizabeth warren progressive wing of the democratic party playbook. i actually think he's made the job to hillary clinton's path to the white house if she's on the path that much more difficult because he's staked out an extreme class warfare case. it's going to be very hard for the democrats to shake off.

and if i were a democrat like michael bennett in colorado or harry reid in nevada i'd be very nervous about this. americans are looking for a constructive tax policy. they're looking for stability. and you have a president going way out into left field to propose something that isn't going to be passed and create tremendous political turmoil going forward. >> he sounds like mayor de blasio. mayor de blasio ran on taxing the rich because that's what he thought was fair and he wanted to get the rich's money so he could fund pre-k here. the governor stepped in and said we'll pay for that. don't have to tax the rich. and de blasio turned around and said i'm doing it because i want to tax the rich. you can't give me money to get me out of this. >> this goes back to the very beginning of the obama presidency and even before. there was an incredible moment in 2008 during the debates with hillary clinton when charlie gibson asked president obama, he made the point he said when you raise for instance the capital

gains tax rate, actually revenues go down. and when you cut the rate, revenues go up. and obama's response was that doesn't matter it's all about fairness. >> i remember that. >> so that's a key moment. by the way you mention the de blasio and cuomo stats, cuomo was widely re-elected as a result. i do foreign policy for "the wall street journal," francois hollande, french president wanted a super tax on the rich. it expired a couple weeks ago. so you have a president who's actually picking up the discarded and failed tax policies of the socialist president of france. >> what about the so-called death tax? they're calling it sort of an inheritance inheritance. basically they want to pinch your estate when you die if you have a certain amount of money. this is one of the many things that i had a now infamous argument with anthony weiner about a couple years back. here's a sample of me asking him

about why that tax was fair. i was very pregnant at the time. if i work all my life and i pay my taxes on my income and then i die and i want to pass on, what would be great if it were $5 million estate to my kids, why should i pay the government? again, why should there be a 35% or 45% or 55% tax on that again? >> you aren't paying anything because you'll be dead. >> tell me how is it fair? >> ready? >> i am. >> oh, he was such a joy. he went onto explain to me that the reason it's fair is because you may pay 55% taxes on your money and then leave it to your children, but your children have never paid any taxes on it and therefore it's very fair to tax it another 55%, 60% as the president's about to propose. >> first of all, i'm sorry you ever had to encounter anthony weiner in any context. >> that was one of our nice exchanges. >> the death tax may as well be called he who has the best tax accountant win tax.

because what it essentially means is it forces people especially people with higher incomes to find various ways of sheltering their taxes or managing their money either spending more or moving it somewhere else. they're always going to find a shelter. so jacking up the rate is only going to favor those people, usual the truly wealthy people who can afford expensive tax accountants, the people it's going to hurt own small and medium businesses, farms, those are the people, especially people who are old and don't have the savvy to move their money quickly that's who it would effect. this is a damned middle class children. >> anthony weiner says don't worry because you'll be dead. >> thanks, megyn. >> be sure to tune in tomorrow night for a special "the kelly file," we're on a special time at 11:00 p.m. eastern time for a recap of the president's state of the union and the republican response. we will be joined by a whole

host of special guests including two prominent presidential contenders for 2016, both rand paul and ted cruz right here 11:00 p.m. set your dvrs tomorrow night. don't miss it. and what may become the biggest issue tomorrow, why all the focus on increasing taxes and so little talk about increasing our security? senator ron johnson is next on that. and plus breaking news tonight on a new display of liberal anger over the film "american sniper." tonight, we will give a military wife who is now a widow of a sniper and a friend of chris kyle the sniper featured in this film, a chance to respond. >> so you're not worried about what might happen? >> don't pick it up. drop it.

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i don't think there's any question. i think what we're seeing, as i said is a much more aggressive chapter and a much more dangerous chapter in terms of the war on terrorism. >> back now to our top story tonight, it was former defense secretary leon panetta talking yesterday about the threat of violent extremism just ahead of the state of the union address that so far we are not hearing is very focused on combatting terrorism. however, it's very focused on increasing our taxes. what's more the panetta comments come as a pugh research poll comes out showing terrorism is a top concern for voters now, a first time in five years that that issue has actually led the list of voters concerns. look at that. joining me now senator ron johnson who is the new chairman of the senate homeland security committee. mr. chairman, good to see you tonight. so far the white house is just

highlighting the economic proposals the president will push tomorrow. we're being told the first lady's state of the union box will not necessarily relate to war on terror but domestic policy and so on. are you concerned about the amount of attention we're prepare today give this not just tomorrow night but from the oval office going forward? >> i'm highly concerned. i'm not sure how much time president obama will devote to very serious threats facing this nation, but i think americans in such uncertain times first and foremost crave safety and security and leadership. they want a leader who will tell them the truth actually be willing to face reality. and from my standpoint actually put in place a strategy to accomplish the very goal that he stated, degrade and ultimately defeat isis. the problem is we don't exactly know what president obama views as defeat of isis is. there's no strategy. go ahead. >> the latest polls show the american people are not with him on this. fox poll shows 39% of viewers

approve of his handling of terrorism, 53% disapprove. but if you were president if there were a republican in the white house, how can these cells that are determined to unleash pockets of violence in different parts of the western world be stopped? >> well, the number one thing is we have to do it. first and foremost, megyn we need to secure our border. and president obama's executive amnesty is going to put pressure not only on our border but dhs that's charged with kind of keeping this nation safe. we have to make sure we have an effective and intelligence gather capability let's not degrade it any further. let's make sure there aren't any stove pipes re-emerging. and we have to defeat isis. >> he's doing that. >> no he's not. we're doing some bombing. you might be able to claim maybe isis is being contained. they're certainly not being significantly degraded. they are a long ways from being

defeated. again, if they're not losing, if they're perceived as not losing, they're per sooefred as winning. they'll continue to inspire what we saw in terrorists in ottawa sydney, ft. hood texas. it's growing, it's met tast sizing. >> we have to be ready to confront it. the question is are we on a much more aggressive front when it comes to combatting terrorism. secretary kerry secretary of state came under fire for going to france to express solsolidarity. critics say it was a day late and a dollar short. even though eric holder was there, he didn't go john kerry didn't go, barack obama didn't go, john kerry goes over last friday and has this weird moment with singers james taylor.

watch. ♪ i'll come running to see you again ♪ >> it's getting killed. the uk's guardian says u.s. to france you've got a placating condescending friend. who thought up this hokie idea song doesn't right wrongs. this ridiculous notion that hugs heal all because he went and hugged the president of france hollande and they don't hug in france ever. and look at this. it looks like a kiss is about to take place, is it not? you tell me mr. chairman, whether we got a handle on this. >> that was a cringe inducing moment. i could not watch the video and i like james taylor. it was amateur hour in the white house. they should have gone to france. megyn, we need leadership. we need to show the world that we are 100% committed again to the goal that president obama stated, degrade and ultimately defeat not only isis, we have to defeat al qaeda in yemen.

we've got to defeat islamic terror wherever it shows up. again, it's showing up in more places. >> i think secretary did a lot to convey the message that they really really do have a friend. i mean kissing -- hugging, that conveys a lot. senator johnson, great to see you. >> have a great night. >> so awkward. i feel awkward just watching it on tv, right? like i wasn't even there. coming up conservative filmmaker dinesh d'souza is getting a lot of heat after he used martin luther king day to challenge -- and when governor romney decided he might join the 2016 field, he reached out to a well-known conservative for help. he tells us exactly what governor romney told us his plans are. >> if we nominate another candidate in that mold, the same people that stayed home in '08

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developing tonight, with the potential 2016 white house field now taking shape, a new poll finds 59% of republicans would like to see governor mitt romney run again. his numbers are better than any of his potential opponents in fact. now, some fellow republicans are starting to attack the idea of another romney run. here's texas senator ted cruz. >> we nominate another candidate in the mold of a bob dole or a john mccain or a mitt romney all of whom are good honorable, decent men. but if we nominate another

candidate in that mold the same people who stayed home in '08 and '12 will stay home in 2016. and the democrats will win again. >> moments before we came to air i spoke with the now-chairman of the house oversight committee utah congressman jason chaffetz. good-bye darrell issa, hello jason chaffetz. start with this, mitt romney called you to discuss a possible run. what did he say? >> he wanted advice and perspective. i hope he does it. i think he offers something that others don't. he's going to have to change his tactics. i think over the next 120 days he's going to have to explain to people how things are going to be different because republicans want to back a winner. we can't lose the white house again. and i think he's the right person at the right time. he's well vetted, he was right on the issues, he can raise the billion dollars that it's going

to take. and i want to win. and so does mitt. >> but he was well vetted and then rejected. >> look, mitt romney's going to have to do something different in order to compel people and show that compassion that i see with inside him. he was prophetic on really foreign policy. and he was mocked by barack obama. i think the public has buyers remorse. i think they know mitt was right and barack obama was wrong. and on jobs and the economy which is still a top tier issue, there's nobody better than mitt romney. >> how serious is he running? >> it was just after christmas and he was saying last week i'm really thinking about it. i think he really does want to become the president of the united states. it's tough to go through this. i thanked him for even considering it because the toll on the family is unbelievable. >> totally determined not to do this after 2012. ann romney looked shell shocked by what she'd gone through.

did he speak at all to the reversal? >> i said if ann romney's not going to run i would back you because i think he would be the best person. i don't see anybody in the current field really stepping up to the mantle and doing the three things i talked act, being well vetted, being right on the issues and being able to raise a billion dollars. >> what i hear you saying is the message will be different and mitt romney can look back and say i told you so. >> yeah. look, he was right on the issues. look at russia, look at the foreign policy aspect you look at barack obama who's promised everything under the sun in terms of jobs and the economy and prosperity. and now he's offering another $300-plus-billion tax increase. mitt romney's got to do a better job of talking about how we're going to create prosperity for all, get away from the class warfare that's out there. and how we're going to grow the economy and allow that basic entrepreneur, the person who's got that transmission shop in lawrence, kansas, how are they going to grow the economy?

and mitt is uniquely suited to do that. >> going to be fun to cover. congressman jason chaffetz, thank you for being here, sir. >> thanks, megyn. with the nfl announcing it is investigating the new england patriots we called the lawyers to find out what happens if a team tried a sneaky trick ahead of yesterday's big game? the answer straight ahead. and new video of this display of anger over the film "american sniper." look what somebody spray painted on a billboard. clearly somebody wanted to be heard. tonight we'll give the military widow and the friend of the -- friend as well. >> what haunts me are all the guys i couldn't save. >> hey, my daughter please not now. >> i'm ready -- >> oh my god! >> i'm ready to come home.

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let me ask you a question, chris. would you be surprised if i told you that the navy has credited you with over 160 kills? do you ever think that you might have seen things or done some things over there that you wish you hadn't? >> oh that's not me no. >> very powerful. breaking news tonight on the hit film "american sniper" which tells the story of u.s. navy s.e.a.l. sniper chris kyle, which broke a whole list of box office records this weekend. we just got video of "american sniper" billboard in los angeles which was vandalized with red spray paint that reads "murder."

the latest demonstration of anger over this now-academy award nominated film. trace gallagher has more from our west coast newsroom. trace. >> megyn, on the very weekend "american sniper" broke those box office records including best picture, liberal filmmaker michael moore sent out this tweet, quoting here my uncle killed by sniper in world war ii. we were taught snipers were cowards. will shoot you in the back. snipers aren't heroes. and invaders are worse. major media outlets and countless others interpreted that statement as a criticism of "american sniper." apparently michael moore found it astonishing we took it that way, quoting again, hmm, i never tweeted one word about "american sniper" chris kyle. i said my uncle killed by sniper in world war ii. only cowards would do that to him. a former army sniper said this about moore being misunderstood. listen. >> he wasn't there in

afghanistan. and the last time i checked he's never shot anybody with a scoped rifle. so i don't think he deserves the breath that comes out of me right now for that statement. >> separately seth rogen said it must have been a slow news day because his tweet he thinks was also blown out of proportion. quoting again, "american sniper" reminds me of the movie showing in the third act of inglorious baterds. now he says he liked "american sniper," quoting again, i wasn't comparing the two. big difference between comparing and reminding. apples remind me of oranges, can't compare them though. jane fonda loved the movie giving high praise to bradley cooper and clint eastwood. clint eastwood as you know was not nominated for best director.

megyn. >> trace, thank you. joining me for more jane horton the widow of army specialist and former sniper -- and jane let me start with you, just so the audience doesn't get confused, your husband was chris but a different sniper than chris kyle. but you are not happy with michael moore and the others who are taking this opportunity even though michael moore's now trying to pretend his tweets had nothing to do with this movie, that in his words american snipers are cowards, not heroes. >> absolutely. first and foremost i do want to give my condolences to the moore family for the loss of their service member in defense of our country. but second of all i want to say that there's no way you can compare a world war ii enemy sniper to a modern day sniper that has volunteered to serve his country that has chosen one of the most dangerous positions that he knows that he'll be one

of the biggest enemy targets. a modern day sniper is the equivalent of going on to the battlefield with a neon sign that says shoot and kill me first. they know what they're getting into. they volunteered to serve. and they know they're taking one of the most dangerous positions. >> and your husband too who was killed at 26 died in afghanistan knew, knew not only was there a risk he would die of course but knew in a letter he wrote to a boy, to a young boy who wanted to be a sniper, wrote as follows, snipers have two reputations, one is the selfless elite hero that moves around the battlefield alone and undetect undetected, a tribune bane of the any economy. the other is a sneaky assassin, honorless and evil. if you stick with this path, you will be accused of this. he knew and likely chris kyle knew that this is how some would view them. >> absolutely. he knew what he was getting into. he knew that being a sniper was one of the most targeted positions over in afghanistan

and in iraq. but also he chose it because he knew it was also one of the most lethal, that he would be making the greatest difference to protect our freedoms in america. and because he wanted to protect our country and serve us. >> clint i know you say you find it ironic that folks like michael moore and others on the left, you know not solely on the left but seth rogen, now they're all denying, but the tweets are in black and white. the audience can make up its own mind. you find it ironic these guys are so free with the criticism. >> yeah, well first before i say anything about that, if i could take a moment to thank jane for being here. i never had the opportunity to know your husband, but with what you're doing right now you keep him alive. and that means so much to me and the men he served with. and he'd be so proud of you. and i wanted to take a moment to thank you who i believe to be our wives and moms to be some of the greatest heroes our nation's ever had. >> thank you. >> megyn, the beautiful and brutal irony is this that's what we fought for. we fought for people to have an opportunity to say things we don't agree with we don't

believe in, and we think are wrong. and sometimes when that happens you sit back and take kind of a gentle peace in knowing that you know you paid for that ticket, that opportunity for them to say things you don't necessarily agree with. >> you knew chris kyle. some of the criticism against him is he's, as the sign says, a murderer, who enjoyed the killing. his book reportedly describes those he killed as damn savages, i couldn't give a [ bleep ] about the -- he does not need to be, and i quote, honored, in a movie. >> i think that happens all the time when you take a two-dimensional picture of someone and don't know him. the chris i know isn't that person. that's a chapter, that's a piece of who we all are in seasons like that when we're doing those things. the chris i wish most people knew is the charming funny folksy, you know guy who played jokes on people and always let you know he was happy to see you. >> but do you think, clint,

there's a cluelessness? because i don't understand how when you get sent into war as most of us have not and you have. >> uh-huh. >> you're supposed to look at the enemy as kind, loving, human beings who have families and so on. don't you have to get yourself into that sort of mentality? >> you do. but i think a lot of times like as a football player the guy i was going after was the guy with the ball. everyone else was friend foe or in the way. and i think snipers maybe among all of us have the best abilities to discern the friendly iraqi trying to find a better life and the person who's visually attacking and stalking and terrorizing the iraqis and taking him out. and chris became a master of that craft just like jane's husband chris did in afghanistan. parting out the really great people who do want a better life and love their children just like we do from the ones who would do anything to accomplish some objective that is purely evil. >> i know that jane you feel very proud of what your husband chris did and you say on his headstone you were only allowed

13 characters each line and you decided to put, valiant warrior fearless sniper. thank you for the sacrifice your family has made, and thank you for yo all the best to you. >> you bet. thank you. up next, conservative filmmaker dinesh d'souza who is taking heat to challenge president obama and al sharpton on the issue of race. dinesh is here next. and then the nfl is now investigating the new england patriots. they're headed to the super bowl or are they? what happens if the nfl finds the team cheated ahead of yesterday's game? the answer ahead. i am totally blind. i lost my sight in afghanistan but it doesn't hold me back. i go through periods where it's hard to sleep at night and stay awake during the day. non-24 is a circadian rhythm disorder that affects up to 70% of people who are totally blind. talk to your doctor about your symptoms

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from the world headquarters of fox news, it's "the kelly file" with megyn kelly. events around america honoring martin luther king jr. reverend al sharpton spoke out at an event about the role he sees of today's civil rights leaders. >> part of the role of activist is to get your attention. you don't see me on "dancing with the stars." you see us dealing with social issues and to draw the attention to those issues. and if you don't do that people are not going to deal with those

issues. >> joining me now, dinesh d'souza, creator of the documentary film "america" and author of the book "the end of racism." dinesh, good to see you. that's an explanation i suppose of types from al sharpton about why he behaves the way he behaves. you see a stark contrast between his ways and those of dr. king. >> megyn, the greatness of martin luther king is this isn't just his personal qualities but there was a tradition that went for a hundred years all the way back to frederick douglas this was a semplg ri of black protest aimed at establishing this idea that we are in a country of minority of one. don't come to us member of groups but belong to us as individuals. one of his most moving lines king said every man must write with his own hand the charter of his emancipation proclamation.

so this idea that we should take responsibility for our lives and we have the right to be treated equally under the law, this is a martin luther king legacy, but how different a legacy it is from the current generation of race activist jesse jackson, al sharpton. but i would add eric holder and barack obama who are cut from a completely different cloth and have a completely different attitude toward the color blind ideal which they reject. >> how so? i mean how do you put al sharpton in the same field as barack obama? >> well, they're not the same. i mean, obama's actually a very odd example because although he's the first african-american president, he hasn't actually had the african-american experience. in fact, he's not descended from slaves on either side of his family. >> what do you mean he hasn't had the african-american experience? he has black skin and he grew up in america as a black man. >> he grew up in hawaii and then he spent -- >> that's america. >> he spent time in indonesia, multiple trips to kenya -- >> oh come on, dinesh.

that does not deprive him of his experience as a black man. move onto your next point because you're also actually taking heat for similar comments you made on twitter including the following, soul brothers you tweeted. obama gets along with guys like holder and sharpton because they are all shakedown artists. a little strong no? >> it's not actually strong. i think what we see today is the leaders of today far from trying to establish a color blind idea use race in order to get political advantage or financial advantage. they use race to threaten corporations to get money from them. they use race as a weapon of intimidation. they stoke the fires of sometimes racial division and even racial hatred. we saw a hint of this in ferguson. so race is becoming an instrument of exploitation, not of justice. >> i got to go but i got to ask you, how's that other thing coming along? you out yet? >> megyn this month i complete four months. so i'm reaching the halfway point of my confinement.

and i get out the end of may. i'm doing great. >> all right, dinesh good to see you. if you don't know what we're talking about, you can just go to "the kelly file" facebook page and see my prior interviews with dinesh on his confinement. could there be a big penalty coming for the new england patriots if it turns out the team used a sneaky trick? did they cheat and could it cost them their super bowl place? esurance was born online. which means fewer costs, which saves money. their customer experience is virtually paperless which saves paper, which saves money. they have smart online tools so you only pay . . . . test. test. money. they drive an all-hybrid claims fleet which saves gas, which saves money. they were born online, and built to save money, which means when they save, you save. because that's how it should work in the modern world. esurance. backed by allstate. click or call. ♪ ♪

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developing tonight the nfl now confirming to fox news that it is investigating the new england patriots after allegations the pats tried to use some deflated footballs ahead of their 45-7 romp of the indianapolis colts in last night's afc championship game. so, if they are found to have

cheated, are they out of the super bowl? fox news legal analyst and marc eiglarsh, what does it matter sf why would they do that? >> well, they're saying is when tom brady the quarterback for the patriots when he was on offense it was raining and it was windy. and if the ball is slightly deflated, it would be easier for him to throw to his wide receivers, and it would be easier for them to catch. >> if they introduce a deflated football into the game, doesn't that potentially benefit both teams because then the colts may get that same ball? >> unless the -- look there's 36 balls hovering around there. and there may be one or two that are marked like okay these are the balls we want to use. and have very sharp astute manager on the sidelines handing the balls back and forth to the referees may be able to do it. blows my mind megyn is how come the nfl, a billion-dollar entity, aren't the ones who are in charge of these balls which are so vital.

>> now i know a lot more about these nfl football games than i ever knew. two hours and 15 minutes before the game officials mark the balls and -- the balls remain under a referee's supervision until they're delivered to a ball attendant just before kickoff. marc if they are found to have cheated, which i guess this would be cheating, could they be kicked out of the super bowl and the colts go in? >> extremely unlikely. i'm hearing penalties would include fines and maybe loss of draft picks. but we're getting way ahead of ourselves here. what we have now, and by the way i'm a miami dolphins fan. i have no stake in this outcome. just so we're clear, all we have is one ball allegedly pulled from a game and weighed. if it comes back between 12 and a half and 13 and a half pounds, we're done here. that's acceptable. there's nothing unlawful. >> and if it doesn't? >> it is not uncommon for them to pull balls that have some type of abnormality during a game. >> but the reason why we're talking about this, judge kelly is because as we do in our

criminal world when a client has been convicted of a crime before, he or she is held to different sentencing guidelines. >> prior bad acts, mark. >> prior bad acts. $500,000 -- >> objection. my bald beautiful brother is doing exactly what shouldn't happen in a criminal case you don't convict based on prior bad acts that have nothing to do with this case. >> you know -- rules of love, once a cheater, always a cheater. >> don't forget, megyn -- >> i'm moving to recuse. >> no, seriously, mark, in any kind of nfl proceeding, mark, you tell me whether a prior bad act of cheating, which speaks to your honesty could be used against them. >> of course it could. goes right to credit. >> if i'm being intellectually honest obviously you consider prior bad acts. in this case short of any videotape showing that the ball went from the referee to the attendant to someone on the

sideline -- >> we don't need a videotape. they've got the ball. >> megyn all they have in the worst case scenario is less air than there should be. that could happen -- >> don't they -- they could prove malice intent to cheat, do they not, arthur. >> yes. the week before we said belichick played fast and loose with the rules regarding substitutions. and he has admitted, megyn that's why we're talking about this. he has admitted that since 2000 he was watching people's signals and stealing them. how come when we talk about cheating in the nfl there's only one team and one name, only one in ten years. >> how much of this before i let you go arthur, is about how good looking tom brady is? >> well i find him incredibly attractive. >> you should have heard and seen the puns on facebook about mark and i talking about deflated balls today. >> i'm not going there. great to see you -- "the kelly file"'s on it. we'll bese asked people a simple question: can you keep your lifestyle in retirement?

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big milestone at fox news. our facebook page hit 10,000 >> a business night for police

on the a remote part of the runway while bomb experts swept for explosives. none were found. another delta flight headed to tell a vooif from jfk. and late word of a tragic accident in cincinnati ohio. one construction worker has been killed and a truck driver injured when an overpass collapsed. the bridge was undergoing demolition at the time. one witness tells a local tv station that he heard what he described as a real big boom. seconds later he saw police cars rushing to the scene. i'm kelly wright. now stay tuned for hannity. it to m desk. >> the president goes on offense. we'll preview tomorrow