how'd it feel today? martha: good. nice to be off with the family. bill: back into it? martha: yeah, we're getting there. revving up for a big week. bill: august. martha: good to be back. bill: don't let it pass you by. martha: bye, everybody, have a great day. ♪ ♪ jenna: the hillary clinton e-mail scandal escalating with word now that dozens of e-mails sent from her private server contained classified information. hello, everybody, hope you're off to a great day, i'm jenna lee. eric: hello, everyone, good to be here, i'm eric shawn in for jon scott this morning. state department investigators sifting through thousands of e-mails from that private server. that process is expected to take until january and, guess what? that is right before the iowa caucuses. well, so far we're told about 60 e-mails have reportedly been flagged as possibly containing even more classified material,

and, of course, that number is likely to grow. jenna: this comes as hillary clinton again says over the weekend she did not send or receive e-mails that were marked classified. words matter here, as we know. ed henry knows that better than anybody. he's live in washington with more on what we know today. >> reporter: your right, that's part of the shifting explanations, pardon me, we've had from hillary clinton dating back to her news conference back in march when she insisted there was no classified, pardon me, classified information in that server at all. as you say, now in recent weeks, months that story's changed to say there was no classified markings but, yes, as you say, we've confirmed with the state department there's at least 63 e-mails they've found that have classified information. don't forget, two different inspectors general have said there could be far more than that, maybe dozens and dozens. hillary clinton over the weekend, you see her campaigning in iowa. she sort of laughed this off as a political investigation, at one point saying whatever this

inquiry is. well, obviously, it's not just whatever, it's an fbi investigation. deadly serious. bobwoodward, the investigator journalist, tells fox it has echoes of watergate for him while hillary clinton, as i noted, sort of laughing it off. listen. >> if you look at nixon and the history of this on the tapes, nixon would always say, oh, everything was fine. it looked good. he didn't remember bad stuff. and that's human nature. we don't remember the bad stuff. and 60,000 e-mails, my god -- >> by the way, you may have seen that i recently launched a snapchat account -- [cheers and applause] i love it. i love it. those messages disappear all by themselves. [laughter] >> reporter: well, now we'll see what the fbi investigation comes up with. look at this new fox poll out about her e-mail statements

containing classified information, did she knowingly lie,58% saying she knowingly lied n. this fox poll as well, did she mishandle classified e-mails, 54% say yes, 37% say no. so it's very interesting that the candidate herself is kind of laughing this off, using it on the campaign trail to say it's just a partisan investigation. meanwhile, the fbi moving forward with this probe and voters at least in that poll suggesting they think it's pretty serious. jenna: ed, thank you very much for kicking us off, one of the big stories. also some brand new fox news polls in the race for the white house. this is the first since the gop debate, and while donald trump is still in the lead, there's a shake-up for the rest of the field with dr. ben carson, senator ted cruz and businesswoman carly fiorina making big moves. joining us now, phillip bump,

writer for the past post's poll -- washington post's politics blog. great to have you both. phillip, i was curious about your writing this weekend. you said ben carson is really the winner here. why is that? >> i would say he saw the biggest jump in the polls. it's a fairly simple way of looking at it. but as a percentage of where he was beforehand and as just a raw point total, he made the biggest leap. and that's something that was somewhat predictable. there's a lot of interest, like on google when the debate was going on, a lot of people were googling ben carson. but i think he saw the most benefit from the group that was in the top ten debate. in the lower tier debate, obviously, carly fiorina was the big winner. it'll be interesting to see how that works over time. jenna: christopher, the numbers phillip is referring to is the 12% ben carson has now, up five percentage points. do you agree he's the winner when you look at the whole field? >> i think he definitely had the

biggest bump from the debate, but it kind of puts a pinprick in the idea that republican primary voters are simply angry, because he's just like donald trump, he's not a politician, but he's the anti-trump in that his style is so soft spoken, so cerebral, he's not angry. his biggest moment was a laugh line at the end of the debate, and voters seem to be sick of washington politicals, politicians. the governors, the senators, they didn't really move at all except for ted cruz. and when voters are embracing ben carson now, they're just saying we don't necessarily need the anger that donald trump brings to the stage, but we do want someone completely different from these politicians on the stage. jenna: is it sustain is bl, phillip? what do you think? >> well, angry voters and angry politicians, donald trump has a lot of energy. he gets worked up a lot, but i think the fact that 42% of the vote went to fiorina, carson and trump, none of whom have held elected office, shows there is

some anger, to chris' point. is it sustainable? it's a great question. no real lead we've seen so far has been sustainable which sort of follows the trend from 2012. donald trump actually held pretty steady -- jenna: well, that's the interesting point, isn't it, phillip? christopher, if i'm wrong, you can correct me, but i think you do a pretty good impression of donald trump. is that true? [laughter] i think you did last time. is donald trump sustainable? is he the one that is sustaining, actually, in the numbers? >> trump is definitely sustaining. you see people that we'd expected like jeb bush continue to rise lowering down, it's whether or not he's reached that 25% ceiling. as some people reported, he hasn't really risen beyond this 20%, but he also hasn't dropped below it. so it could also be a floor. i mine, as long as -- i mean, as long as he keeps on going, even when he makes massive gaffes, he still comes out ahead, because as he said, everyone else is a loser. [laughter] jenna: that's it! it's like he's almost here.

what's interesting, phillip, about this when you look at the numbers, primary voters -- gop primary voters -- are convinced that donald trump is qualified to be president. when you look at the general electorate, which includes democrats, by the way, not as convinced. >> right. jenna: and this is typical. we do see this with primary gop voters being more involved, more attentive to what is potentially going to be the nominee, who is going to be the nominee, but what do you think this tells us about the next several months but also what's ahead as we get past, you know, who is going to be the candidate for president? >> i think one of things it tells us is that donald trump has done a remarkable job turning around. he was, to some extent, a laughing stock a few months ago, and he's not anymore. primary voters on the republican side do see him as being a viable presidential candidate. less so than other candidates including jeb bush, and i think that is also a reflection of his having this core base of support that clearly isn't going

anywhere even after all the kerfuffle that happened after the debate with him. his poll numbers didn't move. he has a solid core base of support, and as long as he can bring enough people who think he's acceptable into that, it's an interesting game. jenna: christopher, as we finish up here, there have been those that say these are just voters that are angry and want something different, and it seems very dismissive of voters who say actually, no, not only am i not angry, i like donald trump. i want to see what he's going to do. what do you think is next for donald trump in the next few weeks ahead? >> for such an unlikable man, he's incredibly likable. i love watching him on television, and i think he's really a reaction against the political correctness and the suffocating political atmosphere that has existed for a couple of years. people, i think, really find that likable. one interesting trend i saw is just a little bit he's moved down, there's been a space for senator ted cruz that's moved up, and that may be the people who are upset with d.c.

people who may have more loyalty to the republican brand will start to move from trump to cruz, and i think you'll see him benefit from donald trump, if he falls behind or even if he surges ahead with the same kind of message that ted cruz brings. jenna: as of right now, as we know, donald trump is serving in jury duty. that must be interesting. we all wish we were there to see if he's actually chosen which could also add another twist to this story. phillip and christopher, thank you very much. >> thank you. eric: he'll probably just serve two days before he -- jenna: you still have to sit there. you've got to bring your ipad, figure out how to spend the time. [laughter] eric: exactly. meanwhile, talking about court, an upstate new york man that accused of trying -- has been accused of trying to join isis. attracted, they say, to the radical islamic terrorism nabbed here at home, he was arrested near buffalo, new york, last month. investigators say they found weapons in his home and say he's tried in the past to travel to turkey and syria to meet up with

members of isis. david lee miller is live in our new york newsroom with the latest details on this case. hi, david. >> reporter: eric, the 44-year-old's court appearance was brief, lasted only ability ten minutes. his hands remained shackled. his attorney entered a not guilty plea on his to two charges of providing material support to isis, a terrorist organization. his attorney also asked the judge for a competency exam, prosecutors did not object, and the judge said he will sign the order when it is submitted. prosecutors say naji was planning what would have been his third trip overseas to join isis when he was arrested last month by authorities. his previous efforts to join the group were a bust. in october of 2012 he planned a three month stay overseas, but that trip last ared only a day because of a gallbladder attack. he tried again last year to make it to syria, but he only got so far as turkey and yemen. prosecutors say naji sent out more than 7,000 tweets espousing

the virtues of isis. some contained graphic images of prisoner executions. in one of those tweets he swore allegiance to the group's leaders, saying i give my pledge to hear and obey al-baghdadi. he's been on law enforcement are's radar k by the way, for a very long time. he was link today the lack wanna six, six yemeni americans arrested in 2002 and later convicted for trying to join al-qaeda. but naji was not arrested at that time. and at an earlier detention hearing, the judge in this case refused to grant bail to naji citing his criminal history and two orders of protection filed against him. local media reports say he threatened to behead his own daughter. according to court documents over the last year, he purchased a number of things on the internet including a tactical vest, night vision goggles and an isis flag. he faces up to 0 years in

prison -- up to 30 years in prison if convicted of the two charges. eric: in the next hour, we'll examine the growing threat of these types of suspects here at home. jenna: this is also a big story getting a lot of attention. a young woman stabbed in the street and left for dead. she happens to be morgan freeman's step-granddaughter, and she was brutally murdered here in new york city over the weekend. the actor's reaction and the latest on the suspect in what is truly a bizarre story. plus, a desperate rescue effort in indonesia where a passenger plane crashed with 54 people onboard. and we want to hear from you, if you were voting in the gop primary today, who would you vote for? our live chat is up and running, just go to foxnews.com/happeningnow to join the conversation.

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charging him with second-degree murder. freeman in a statement saying, quote, her star will continue to shine bright. may she rest in peace. in philadelphia, the parents of a 12-year-old girl suffering from bipolar disorder reporting her missing, they say she was wearing a black tank top, jean overalls, and anyone with information about her whereabouts needs to contact police. and this man will be arraigned on aggravated arson charges accused of throwing gasoline on his girlfriend and setting her on fire earlier this month. eric: rescue crews in indonesia desperately searching for any survivors in that airliner crash yesterday morning. 54 people were onboard the turboprop plane when it went down in a very remote area. and while it is believed severe

weather may have caused that crash, you know, they have a spotty safety record, losing ten planes, they say, over the last 14 years. in fact, the airline has even been banned from flying in europe over safety and regulatory concerns. so how do we know we are safe when we fly these airlines? joining us now, kathleen barnes, former commercial pilot in minneapolis. you get a package tour and go on the one airline, you get off and you get on another turboprop, you don't know who it is. how can we make sure it's safe? >> >> well, that's one of the biggest problems. when you sign on with a national flag carrier that you trust, you don't really know what the airplane is at the destination. now, it's not that the airline is necessarily hiding that from you, and you can certainly go online, and it will show the identifier for the airlines you're going to fly all the way to destination. it will show the size of the aircraft. in fact, when you select your seating on most airlines, it'll show you who's actually operating that.

and i think it really behooves people to see who are you really flying with when you buy that ticket. eric: is it flight safety or flightaware.com? >> well, not necessarily flight aware, that's more for tracking your flight, but there's many, many reputable sites you can go on just doing a cursory search for airline safety, because it depends on who you want to go with. there's the government, there's the faa, there's one that the ntsb has. again, our concern is generally internationally. we know that most carriers here this the u.s. are very safe. in fact, there hasn't been a crash of a u.s. commercial airline in over five years. that's unprecedented. where you really have to be careful is flying overseas. eric: sadly, there was this weekend a general aviation accident, that horrible tragedy this san diego where a business jet crashed into a cessna 172 outside the brown airfield, and you've got, you know, in long island, new york, pilot was killed as well as in vermont, they survived.

in new jersey, one dead when a cessna went down. what is causing all these general aviation accidents? just more people in the air because summertime and good weather? >> el, that's part of it but, sadly, actually, general aviation is decreasing in the united states as less and less people are taking up flying. we'd actually like to see general aviation grow. yeah, there's generally these mid-air collisions, they do get a lot of news and attention because they are very dramatic. and southern california has certainly been the site of some of the country's most dramatic mid-air collisions which actually went on to improve safety and to cause a lot of regulatory change which was actually good for the industry. i don't think we're see ising any kind of negative trend. like i said, in general aviation you don't generally have the same type of aircraft, the same level of training for the pilots, certainly, so you're never going to see probably the safety record in general aviation come up to what you see with the commercial carriers in the united states which is actually phenomenally safe at this time. eric: well, kathleen, thank you

very much. really a terrible weekend, hopefully it'll be safer. thank you. >> thank you. jenna: well, could your happiness with your marriage be based in part on what political party you side with? or more specifically, where you live in the country? we have details on surprising new research coming up. plus, we're awaiting the verdict in the trial of a washington post reporter being held in iran. as human rights groups step up their efforts to the see him set free. i'm only in my 60's... i've got a nice long life ahead. big plans.

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jenna: right now we're awaiting the verdict in the very secretive trial of a washington post reporter who's being held in iran. jace rezaian remains -- jason rezaian accused of espionage. many human rights groups demanding his release, and a verdict is likely by the end of

this week. last week we heard that we should get a verdict by today, so here we are, still no verdict, and jason remains behind bars. thomas is joining us, the tehran bureau chief for "the new york k times," one of the few journalists working inside iran. what's going on here? >> well, clearly, the lawyer and iran's judicial system aren't on the same speed, and this is not the first time, of course, that this has happened. basically, iran's judiciary has been saying all along that they will decide what is the final trial and that it will be up to the judge to make that call. and, apparently, of course, behind the scenes the judge has made this call to either have another session for mr. rezaian that will be a fifth one or at least postpone the handing down of a verdict because today was the deadline according to the lawyer, and we have seen nothing. jenna: do you expect to see something this week, thomas, knowing what you know?

>> well, this whole case throughout has been really a total mystery. deadlines that the iranian judiciary has set themselves have not been made, several, several other deadlines have also been passed. and, yeah, it just shows what mr. rezaian is at this point, he is a pawn in their hands, and they -- the iranian judiciary -- are the ones who will decide ultimately when, if ever, he will be tried. jenna: thomas, i'm curious, in this country we're talking about jason quite a bit, our viewers know his name, they know the hashtag freejason on twitter as well. inside iran does your average iranian know about jason's story? is there any pressure at all from the public there about his plight? >> well, for a very long time people actually didn't know about his story, but in recent weeks i haven't been able to go out, go in taxis, in buses n

coffeeshops and have people come up to me and say, hey, are you a journalist? what's up with this jason guy? why aren't they releasing him? so there is this slow movement of people understanding what's going on. of course, iranians are overall very happy with the nuclear deal, and they want this outstanding issue with the united states, the issue of jason rezaian being in prison, also solved. jenna: do you think that will add pressure that we do find out his fate soon, because the public is now more involved? >> i i think while certain leaders in iran definitely try and listen to the general public, iran's judiciary which is an independent power doesn't really have a message to such concerns. they say that they are having their legal process going its course, and there's really not much we can do other than to wait for them to come with a verdict. jenna: i ask because we've, obviously, seen a myriad of different people try to add pressure to try to get jason out of prison, and so far as you

mentioned and as our viewers now know, we're still waiting. let me ask you a quick question as we finish up here. i was noticing and i do notice that the days the ayatollah, the supreme leader in the iran, is active on twitter, and one of the things he's talking about today is america's desire to penetrate into the middle east region, they want to disintegrate, he writes, also mentioning that the united states will not become involved in iran after this nuclear deal if it is approved. but it's also my understanding that there's something going on inside iran as far as the nuclear deal. and just like our congress is taking a look at the deal, there's a question about whether or not iran's government will look at it as well? >> absolutely. i mean, there's an internal debate going on here with iranian hardliners saying that it should be the parliament, just like congress, that has the final say on this nuclear deal. well, the government that actually made the deal doesn't agree. they say, no, it should be our national security council. and the supreme leader, we just mentioned, has been very

constant in his remarks. he always makes clear that he doesn't like the united states at all, but at the same time he is not probably endorsing the deal or going out against it. so he's holding his cards very close to his chest. jenna: that's interesting. thomas, always great to have a conversation with you, and we look forward to having you back on. thank you. >> thanks for having me, jenna. eric: in china the death toll rising one week after the massive explosions rocked their port city. what investigators are now finding as they sift through all that rubble. and hillary cli e-mail scandal, well, that controversy is widening. now new reports this morning of even more e-mails on her personal server that may have had classified information. the former secretary of state, you know, this weekend she was joking about it all. is that appropriate? and are the reporters taking this seriously enough? coming up next, our media panel will weigh in.

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jenna: well, chinese crews scrambling to find missing people still and clean up hundreds of tons of toxic material. this is following those devastating explosions in a chinese port city last week. now people there are demanding compensation from the government. benjamin hall's live in london with the latest. >> reporter: hi, jenna. well, yes, furious residents today protesting against what they see as the massive corruption and grave errors which caused this horrible explosion. overnight as well, the death toll continued to rise, and we now know 114 people are dead, 700 in hospital and 70 still missing. over the weekend military experts were assessing the fallout as purple-black smoke rose from the site, and hundreds of chinese nuclear and biochemical specialists arrived at the scene. residents are refusing to come to their homes claiming groundwater could be contaminating and that they were -- contaminated and that they were living near a ticking time bomb.

6,000 people have been displaced as insurance companies say the costs could run into the billions of dollars. what is known so far is that a fire started in a warehouse which contained 70 tons of -- 700 tons of the highly combustible sodium cyanide. this is far more than is legally allowed to be held by anyone, and it's unknown if it was registered. firefighters responding to the initial fire were unaware that the warehouse con talk abouted -- contained this chemical. that explosion could be six miles away, it was 30 stories high, and it could be seen from space. it's also believed that the warehouses were built illegally, far too close to worker accommodation, highways and other residences. the government has so far ordered a nationwide check on workplace safety and have said they're investigating possible dereliction of duties and abuse of power. most significantly, they have allowed protests to continue. usually they shun any public demonstrations, but there has

been widespread coverage around china, and the government is eager to be seen an stamping out on corrupt practices. this might become a catalyst for change and reform in workers' rights and safety procedures which traditionally, jenna, in china have been very, very poor. jenna: an interesting part of the story to watch. benjamin, thank you. eric: hillary clinton's e-mail controversy seems to be growing, the number of e-mails on her personal server now flagged by the state department as classified, that's risen to 60, and there could be even more. analysts combing still through the 30,000 e-mails that passed through her server. mrs. clinton, however, has been poking fun at the controversy, brushing it off as political partisanship. with those allegations involving classified material and federal authorities confiscating what we are told turned out to be a blank server with nothing on it. is this really something to joke about, and what should they look at? allan combs, tammy bruce join us

now. tammy, let me start with you, what should the media be asking right now? >> well, i think hillary's taking alan's line. he keeps joking about this too. [laughter] >> oh, my god, a joke. we can't have that. >> these are, obviously, serious issues. think the attitude is really much ado about nothing. reporters, there's so much in front of this that nobody's asking questions about. there was a migration of data from her server to this company in new jersey. we don't know if what they've turned over is the original server. so are there two elements of data that exist? does the fbi not have the actual original server? you know, these are questions that should be asked because the vice president or spokesperson of the this data company said they had migrated data. there was no actual hardware transfer. so these are interesting, important things. if we've got classified material in two different states, if hillary still has all those e-mails and if the fbi has

the -- eric: alan, are these questions legitimate? >> absolutely. she can't take a joke on the campaign trail. [laughter] good, i think it's good that she's lighthearted and joking about something, which i do not think in the end run will damage her campaign. eric: you don't? >> you know that george -- people hate it when i bring up bush, but 88 people in his administration used private serve iser, governors like mitt romney did it, scott walker, jeb bush, they did it. no one's going after them -- eric: yeah, but did they have classified -- >> she has said at the time she got or received e-mails, they were not at that time classified. eric: she also said not marked classified. >> well, the question is did she lie, did she break the law? we don't know that any laws were broken. i've said all along she does need to get out in front of this. those are all very good,

legitimate questions, and i think she needs to answer those. >> well, i think that the joking, the the problem for hillary is she has no sense of humor -- >> then she tells a joke, and suddenly it's horrible. >> no, i think her jokes are very telling. she talks about snapchat, and these disi appear automatically -- disappear automatically by themselves. she's clearly angry and bitter -- >> she told a joke. >> if you have a sense of humor, you can tell a joke. for hillary, you know what it is? it's like when there's someone who's so passive-aggressive and they're at the dinner table, but they're really trying to poke you in the head with an ice pick? >> so, in other words, god forbid she tells a joke to prove she has no sense of humor. >> it is the effort still to evade, to cover, to -- i don't know, maybe she was doing a corkscrew landing when she was delivering the hardware to the company in new jersey. this goes down to -- and it already is hurting her, not that -- >> she's beating every

republican candidate. >> her, actually, not anymore. last night she is now, bush is now beating her, which is a first. that's telling. eric: what's the impact on the campaign, alan? >> well, it's too early to tell. polls at this point mean very little anyway. you think donald trump will be the next president of the united states. >> and what is the impact on her? you talk about the media -- >> we've already seen it. eric: see what investors business daily said? they want a special prosecutor. they say she, in violation of the law, almost certainly exposed u.s. secrets over the server. if clinton had been a republican, criminal charges would have already been drawn up. after months of denial, delays and obstruction, it's time for -- >> sounds like he's already been convicted. eric: we need a special prosecutor with the tools to do it. >> where's the evidence that any information was transmitted that somehow damaged the well being of the united states? >> this is the problem that this is still an issue, because those kinds of questions weren't asked six months ago or eight months ago or a year ago.

so now everybody is making more demands, it continues to be a story because the media -- obama's regime won't be doing it -- the media hasn't been asking the right questions because, according to you, maybe it would have cleared her. >> she needs to get up and answer those questions. i wish she'd do it sooner -- eric: an op to ed piece in the new york times says she's not going to get indicted. >> if she's not indict canned, it can be as bad because then people are thinking that, you know, well, there's no rule of law -- >> the only answer is for her to get indicted? >> there's recommendation for an indictment and obama doesn't do it, are you kidding? this'll never end. eric: bottom line, what happens? >> i don't think hillary will be president of the united states, and i think the odd toes are much higher that she will be the mom e knee. >> whether she's the president, or not, is up for grabs. eric: we'll play this tape in a year and a half. [laughter] >> we'll be here.

jenna: an elite prep school under scrutiny today as the trial begins for a former student accused of rape on campus. how revelations about a tradition at the school will impact potentially this case. plus, jason day wins the 97th pga championship. why this win was such an emotional win for this australian golfer. flrch it's more than the cloud. it's security - and flexibility. it's where great ideas and vital data are stored.

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eric: professional golfer jason day'sf coming up short are now in the past. you know, it's his first major tournament win. the 27-year-old's record-setting performance left him three shots ahead, but reigning masters and u.s. open champion jordan spieth. the win was an emotional one for day after he tied for ninth in the u.s. open in june, then he tied for fourth at the british open last month. congratulations to him. jenna: well, one of the country's most selective boarding schools under the microscope today as the trial of one of its alums begin cans.

jury selection is happening now in the trial of owen lovely, the 19-year-old accused of raping a girl days before graduating in new hampshire. he pleaded not guilty, but he did go into great detail, apparently, about what's described as a school tradition called the senior salute where he says older classmates try to hook up with younger girls. whitney bowen and former prosecutor jonna -- [inaudible] who also serves as criminal defense attorney as well, and that's really where we're going to focus, on his argument. jonna, i'm curious what you think about this case overall. this is the elite of the elite, $54,000 a year to go to this school. secretarier kerry, 13 u.s. ambassadors, multiple pulitzer prize winners have attended this elite school. that's what we're talking about here. how does that impact the case? >> i don't think the fact that they have very elite alum is going to impact the case so much

as this actual revelation of the sexual, the senior salute that is coming forward in this case. and i'm actually -- it's confusing and distracting, because here you have an alum who's saying, no, i did not commit rape, in fact, i did not have sex with person. but at the same time, he goes into this illustrious recitation of this disgusting and horrible program, for lack of a better word, that's going on on this campus and apparently has been for a long time. so the school is not on trial right now, only this defendant is. so how this is going to play into whether or not a jury finds him guilty or not guilty is a mystery. jenna: interesting. whitney, the lawyer currently defending this young man also defended whitey bulger, the former mobster now in prison for re the lawyer, and he has not commented about whether or not his client is going to use this as part of his defense, would you use it? how would you use this tale about the school? we don't know if it's real or not. how would you bring that into the case? >> well, i don't know if i would

or i wouldn't. i don't know that he can necessarily avoid it, however, because his client went ahead and talked about it when he gave a statement previously which will, ideally, i would prefer my client not give a statement because they're not the most likable things in terms of he stopped and didn't have sex with her because he had define inspiration -- >> that's what he actually said. >> yes, yes, and him saying a younger class woman would say something like this because it would be a point of pride to sleep with an upper classman. i agree with jonna, he's not on trial -- excuse me, the school is not on trial here. who's on trial is him, and the issue is they don't have any physical evidence. and it sounds like this is rather a kind of attenuated sort of reporting as far as how this came out in the first place, that it came from a counselor, it came from her mother, that it came from her. it just means the prosecution may have a harder time proving this case with a lack of

physical evidence and a kind of hearsay within hearsay in terms of the reporting sometime after the incident. if it did happen, they couldn't maintain physical evidence, and they're going to have a harder time proving the case. jenna: the hospital said her injuries were consistent with rape, but to whitney's point, there is a question of is it just a he said/she said case at this point. i can't help but thinking about the "rolling stone" story which really focused on group that was very unlikable which was the fraternity system at the school and basically indicted the entire system. i bottomedder how that -- i wonder how that plays in here. the boarding schools don't necessarily get the best reputations, and i just kind of wonder how that could be -- again, in fairness, how that's part of the story even getting the press. >> well, often times in rape cases it turns into a he said/she said because for whatever reason, somebody doesn't get the dna evidence, they don't report it, etc., what the victim in this case is going to have on her side is this is

not college where sometimes people have the morning after regret. this is a boarding school where these are teenagers incapable of consenting to sex until, in new hampshire, the age of 16 which, in my opinion, is awfully young. so the jurors are going to be looking at this victim as, you know, not a consenting adult in any way, shape or form, but as a child. and when you factor in this convoluted story of this sexual tenor at this school, the jury just might come back even with a lack of physical evidence and find there is enough to convict this kid. jenna: it'll be interesting who takes the witness stand, whitney, because you even have alumna writing to the boston globe saying this sounds consistent to what we saw in school while we were in school there. do you bring back all these alumni to testify against this one guy? >> i don't think it would be allowed. jenna: let me ask specifically about the man on trial. he also served as a prefect for the hall, and so he went through

special training, you know, what is statutory rape, went through all of this. and i'm curious about how that also is applied here, because he more than anyone would know were better. >> right. and, i mean, i just don't know that the issue here becomes about as much the school as it is in this story and how it's been played out in the media. i mean, we're talking about someone who's on trial for acts that he's accused of committing, and the state or the prosecution's going to have to prove that beyond a reasonable doubt with actual evidence. not just conjecture, not stories about what the culture is at that university -- excuse me, that lower elementary, i guess, secondary boarding school. it's going to have to be actual evidence. so the fact that, you know, you're saying that there are all these witnesses who are willing to say this is consistent with what went on there, that is indicative of a larger problem. but that does not make him guilty of a crime. jenna: that's a good point to end on, jury selection guns, so the case is just in the first stages. whitney and jonna, thank you. >> thank you. >> thank you.

eric: jenna, who controls embryos when a couple breaks up? it's a question that a judge will soon answer. coming up, we'll tell you how the decision could have some national ramifications.

♪ ♪ eric: what's ahead on "outnumbered" at the top of the hour, sandra and harris? >> hillary clinton's e-mail scandal just keeps growing. new reports of 60 additional classified e-mails on her private server. even the famed watergate reporter bob woodward is now comparing this to the nixon tapes. >> and donald trump laying out his plan to stop illegal immigration in this country. and guess what? some folks, they love it. others just hate it. we'll debate it. >> and when an nfl superstar saw his son get a participation trophy, you know the kind that pretty much every kid is getting these days, he said no more.

he says he supports his kids, but they have to earn their trophies. >> can't wait to talk about that one. all that plus our #oneluckyguy, "outnumbered," top of the hour. eric: that's a great topic, by the way, that last one. jenna: right now we're awaiting a decision in a california court case that could have national implications. it involves a former couple battling over their frozen embryos. at issue, who has control if and when the couple breaks up. claudia cowan has more on this. >> reporter: and, jenna, it is an emotional case over whether a man's right to not be a parent outweighs his ex-wife's last chance to have a biological child. steven fendly, seen here on crutches, is fighting to have five frozen embryos destroyed after divorcing his neuroscientist wife of three years. just before they married in 2010, lee -- then 41 years old -- was diagnosed with cancer and knew her treatments would

leave her infertile. so the couple underwent invitro fertilization, signing ab agreement stipulating -- an agreement stipulating their embryos would be destroyed if they got goosiered. now that that's happened, fendly's got a strong case. >> his argument is i'm going through a divorce. we sign a contract that understood what would happen if we go through the divorce which is that the embryos were supposed to be destroyed. so he just wants his contract provisions fulfilled. >> reporter: lee's attorney says it's not that simple. >> our client at this point is 46 years old, she's a cancer survivor, and she is infertile. she has no other options to have a pow logical child. so we're confident our climate's going to win. >> reporter: fertility experts are hoping whatever the outcome -- >> these adult decisions, people really understand what they're signing before they decide to make such an adult decision to create an embryo, which is a very precious set of cells. >> reporter: indeed, the ruling could determine that

these frozen embryos are future children and subject to custody battles as opposed to simply the focus of a contract dispute. jenna, a a ruling is expected by november. the losing side is certain to appeal. jenna: claudia, thank you. we'll be right back.

we will see you back in an hour. "outnumbered" starts now. >> this is "outnumbered." i am andrea tantaros, and here with us today is harris faulkner, sandra smith, >> hoshost of kennedy, fox business kennedy, and today's hash tag, all rise, judge alex ferrer is here. >> almost didn't make it. my luggage just got here after getting here sunday. >> where is your robe? i hope itsn