>> harris: fox news alert. investigators are set to speak at any moment. look, they're walking out right now. it's about the deadly movie set shooting involving alec baldwin. the district attorney makes it clear now that criminal charges are on the table amid claims of negligence, unprofessionalism and stunning new information

about the gun and the crew. let's watch. >> good morning, everybody. welcome to the santa fe county sheriff's office. first and foremost, i'd like to offer condolences to the hutchins family, a speedy recovery to mr. souza and the concern of the safety of men and women in the field industry. at october 21, 2:48 p.m., we were dispatched to the ranch after a 911 call advising two people were shot on the movie set. it was later determined that halyna hutchins, the director and joel souza, the director had

been shot while rehearsing a scene on the movie "rust." it was determined that actor producer alec baldwin was the person that fired the weapon. we identified two other people that handled and/or inspected the loaded firearm prior to baldwin firing the weapon. these two individuals are armor hannah gutierrez and assistant director david halls. all three individuals have been cooperative in the investigation and have provided statements. over the last few days, our team has been working diligently to conduct interviews, execute search warrants and collect and process evidence from the scene. during this process, we determined that there were limited amounts of movie set staff present in the area where the actual incident took place.

although there were approximately 100 people on set. through the execution of search warrants, we selected about 600 items of evidence. these include but not limited to three firearms. approximately 500 rounds of ammunition and several pieces of clothing and accessories. we believe that we have in our possession the firearm that was fired by mr. baldwin. this is a firearm we believe discharged the bullet. we also believe that we have the spent shell casing from the bullet that was fired from the gun. the actual lead projective that was fired haas been recovered from the shoulder of mr. souza. the projectile was recovered by medical personnel where he was being treated and turned over to the sheriff's office for

evidence. we regard this spent casing and recovered projective to be the live round that was fired from the revolver by mr. baldwin. we have recovered what we believe to be possible additional live rounds on set. all the previous mention items along with other items of evidence will be submitted to the fbi crime lab in quantico, virginia for analysis. we're working thoroughly to gather the facts of the investigation, continue interviews and further analyze the -- and process the evidence. i want to ensure the victims, their families and the public that we are conducting a thorough and objective investigation. in reference to possible charges, it's too early in the investigation to comment on

charges at this point. if the sheriff determine as crime has occurred and probable cause exists, an arrest will be made and charges will be filed. otherwise, we'll complete our investigation and forward the evidence to the district attorney for review. i'd like to thank our investigations division for all of their hard work and diligence in this case, the santa fe county ems and the local fbi office for their support and assistance in this case. also the district attorney's office staff that has been working side by side with us. i'd like to introduce judicial attorney, mary alweis.

>> good morning. i'm the official judicial district attorney which my jurisdiction includes santa fe county. i echo the sentiments of sheriff mendoza and want to send my condolences to the family and friends of this tight knit community. i also want to thank the santa fe county sheriff's department for actively investigating this incident. our office appreciates your hard work and together we will ensure that this investigation is held to the highest standards. i speak to the prosecutorial perspective here. i must emphasis that a complete and thorough investigation is critical to d.a. review. we take the corroborated facts and evidence and connect it to new mexico law. we're not at that juncture yet.

if the facts and evidence and law support changes, i will initiate prosecution at that time. i'm a prosecuted that was elected because i don't make rash decisions and i don't rush to judgment. i rely on facts supported by evidence, cooperatives and credible witnesses and i cannot stress the importance of allowing the santa fe county sheriff's office to continue with their investigation that was both serious and complex. so at this point we'll open it up to questions. >> based on the witness interviews that you have done, can you tell us what you learned about the live ammunition on the set and how it made its way to

the gun. >> i won't comment on how they get there. we suspect they're there. that will be determined when testing is done by the crime lab. >> how did you inspect this gun and not notice there was a live round in it? >> that's what we're trying to determine. the people that inspected or handled the firearm when it was loaded before it got to mr. baldwin we're interviewing. there's follow up questions that we need to do. there's further investigation, further interviews and we'll try to determine exactly how that happened and if they should have known there was a live round in the firearm. >> [question inaudible] >> no, i said there was a total of 500 rounds of ammunition. that is a mix of blanks, dummy

rounds and what we're suspecting live rounds. >> a bullet was found in the director's shoulder that was recovered in the hospital. >> we know it was a led projectile. it's to be determined by the ballistic analysis by the fbi crime lab what the weight of the bull let is. maybe -- whether or not it was fired from that actual firearm. it will be the riflings and things tested and compared. so there's a lot of testing that needs to be done to ensure that that projectile left that firearm. that's what we suspect. >> sheriff, as a man that pulled the trigger and a producer on the movie, does alex baldwin face the potential of criminal charges? >> that may be a question better answered by the district attorney. >> all options are on the table at this point. i'm not commenting on charges, whether they'll be filed or not

or on whom. so the answer is, we cannot answer that question yet until we compete a more thorough investigation. >> [question inaudible] >> no one has been ruled out at this point. >> is alec baldwin considered a person of interest right now? >> that's you. >> he's obviously the person that fired the weapon. so we're going to continue interviewing and getting the facts of his statements and the evidence and the case and possible witnesses or anybody that has any information. so right now he is an active part of this investigation. >> is he likely to be reinterviewed? >> we hope so. as of right now, everybody is cooperating with statements and interviews. >> you mentioned this is an ongoing investigation. from your department, what does that mean specifically? what else do you have to do?

>> so basically there's a lot of interviews that have to be done. we've determined that there were a limited amount of people or movie staff that were actually in the vicinity of the incident. so there's also approximately 90 people on the movie set itself, a lot of interviews that need to be done still in this case. that's going to be important. there's a lot of facts that are floating around. i wouldn't say facts. maybe facts and rumors floating around and it's our job to figure out if they're facts or rumors. >> [question inaudible] >> so we would consider the live round a bullet live because it did fire from the weapon and obviously caused the death of mrs. hutchins and injured mr. souza. >> how much will you take into account the previous accusations

of unsafe practices and negligence on other sets? we know you will for this sit. but there's reports of negligence on other sets. how much will you take that into account? >> that's up to the district attorney to determine how much that will weigh. we will follow up on those statements made, that there were other incidents. we want to speak to anybody that has any information in reference to safety on other sets or whether there were other issues and we could encourage to call the sheriff with any information that they may have so we can get a good idea what the totality of the circumstances are on this set and what is happening in the industry. >> [question inaudible] >> that is something that will play into our legal analysis when we get the completed investigation from the sheriff's department. could play to whether charges

get filed or not. >> [question inaudible] >> can you speak broadly to when it comes to a accidental shooting and what your office says when we get to that point? >> yes, when we get to that point, we will speak to it. i don't know that we're at that point yet. again, we can't say that it was negligence by whom, how many people were involved. we can't say that with any certainty at this point. so when we get to that point, yes, i will speak to that. >> [question inaudible] >> i will talk in reference to

the caliber of the actual weapon that was fired by mr. baldwin. that firearm was a long colt 45 revolver. >> [question inaudible] >> was other ammunition in the gun that we believe was fired by mr. baldwin. >> were those live rounds? >> the other live bullets in any other guns? including what was recovered. >> as of right now, there were three firearms located on the set within close proximity to the incident. we're still going to determine, we'll send the firearm fired by mr. baldwin to the crime lab and do a functionality test. obviously it fired a live round. the other weapon is a single-action 45 revolver. that one looks like there's some modification to the cylinder and

may not be functioning. that will be determined by the crime lab. the other firearm is a plastic nonfunctioning revolver. >> can you talk about tensions on the set? six hours before the accident and people drinking or crew members drinking the night before, lacks conditions. can you talk about that and specifically was there tension on the set? >> i won't talk about specifics. we are aware of those rumors or those statements that have been made and we'll do the best to track those down. >> sheriff, can you confirm the camera was rolling when the shot was fired? >> there was a search warrant issued in reference to any camera footage. there was footage but i can say there's no footage of the

incident. >> how much responsibility does alec baldwin have as a producer and how does this influence the execution of the charges? >> once we gather all the statements of fact, once we do the interviews, that will be weighed by the district attorney to see what weight that will give in making charges. >> [question inaudible] >> not at this time. >> can you give us an update on alec baldwin and the view of how he's been so far? >> generally he's been cooperative in this investigation. >> can you describe his demeanor? >> i won't comment on my perception of his demeanor. >> for clarity, was it a live round or suspected live round? >> i'll say until it's prove by the crime lab, it's a suspended

live round but it did fire from the weapon and did cause injury. so that would lead us to believe it's a live round. >> [question inaudible] your thought about the use of real weapons on the set. >> obviously i think the industry has had a record recently of being safe. i think there's some complacency on this set and some safety issues that need to be addressed by the industry and the possibly the state of new mexico. i'll leave that up to the industry and the state to determine what that will be. >> have you ever covered a case -- are there cases like this in santa fe county where you had somebody fire a gun, did it clearly accidentally, they thought it was a cold gun but other people loaded the gun and could be held liable? any kind of precedent for a case

like this in your county? >> no, there's no precedent. >> i mean, it's a tricky legal battle. >> it is a very complex case. it will require lots of legal research and analysis and review. that's what my team is here for. that said, again, we don't know how that will play in until we get that complete investigation. >> sheriff, was the projectile taken from the director's shoulder, is that the same projectile that killed halyna hutchins? >> we will leave that up to the office of medical investigator to determine. it's apparently the same round. >> are you investigating whether people were recreationally shooting? >> we're investigating whether

that is true. i would encourage anybody that has any information on a firearm discharged away from the movie set for practice or for whatever reason to contact the sheriff's office. >> what do you think happened here? you said two of the three guns appeared to be nonfunctioning. what do you think -- >> i think the facts are clear. a weapon was handed to mr. baldwin. the weapon is functional and fired a live round killing mrs. hutchins and injuring mr. souza. >> [inaudible question].

>> we know there was a live round on set. we suspected there were other live rounds. that's up to the testing. right now we're going to determine why they were there because they shouldn't have been there. >> [question inaudible] >> he's been cooperative. i'm not sure of his whereabouts. >> [question inaudible] >> that's still being investigated. >> were there multiple rounds --

>> [question inaudible] >> based on what i said, there were several individuals that need to be interviewed. from the interviews come new information and we need to track down. i don't want a timeline on it. i want everybody to know that we're working diligently, our investigative team is. there's no timeline. we want all the facts, all the statements and present it to the district attorney's office for review. >> [question inaudible] >> we have. >> [question inaudible] >> as questions come up, other information comes to light, there may be follow up interviews. so i would suspect that we would want to re-interview them. >> you said there was a small number of people inside the area where this happened. >> [question inaudible] >> there was a small number of

people within the set area where the incident took place. those people have been interviewed. i'm talking about 100 people on scene in different areas. so those people that were in close proximity to the incident, they've been interviewed. >> just for clarity, were there other live rounds in this chamber? >> not that we're aware of. >> the sheriff used the world "complacency" on the set. >> [question inaudible] >> i'm not going to answer hypotheticals today. i'll say there's a bridge and it will take many more facts, corroborated facts before we can get to the criminal negligence standard. they're gathering that as we speak. >> [question inaudible] >> i can't say that without

specifically legally researching that. my off-the-cuff answer is no. >> for the sheriffs, your experience with firearms, sheriff, what is your view of such complacency on the set of a movie? >> any times firearms are involved, the safety is paramount. i'll say that. anybody knows that. any time a firearm is around, safety is paramount. >> [question inaudible] >> i don't let my emotions get involved, this is an investigation. we rely on the facts. >> you said a small number of people were in the room. what is a small number? >> the information that i received from the detectives, there were 16 people in the vicinity of where the incident took place. thanks for all your questions. i appreciate it. that's all we're taking today. unle the da would like -- >> we're good. thank you. >> thank you.

>> harris: that was a lot of questions. the answers were surprising. we finally got a number of people there at the end that might have been closest to the scene as alec baldwin fired the weapon which killed halyna hutchins, the 42-year-old director on the "rust" movie set. a fragment of the bullet casing we know from sheriff mendoza is what hit the director of the film, joel souza in the shoulder. they've retrieved that. now they're putting together the bullet, the gun and all of that. the big question now is, how many people were on the set, who knew what when and could this have been prevented? at first he said 100 people. then 90 and then back to 100 people. there were a lot of people on the set. we know 16 of them are close too

what we'll call a shooting action so we don't know from our own reporter, jonathan hunt. well, is complacency a crime? we don't know what we're looking at. i'm harris faulkner. you're watching "outnumbered." this is emily and kayleigh. emily, there were some things that popped. 500 round of ammunition, a mix of, you know, live ammunition, blanks, dummies. we don't know how many. your take. >> emily: here's what viewers need to understand. safety is no accident. so let's just take that general rule and let's apply it here. everyone is talking about the negligence standards and criminal charges and the like. if you knew or should have none that something occurred that is civil negligence. if you have a reckless disregard for life, have a great risk for bodily injury or death, that's when you're criminally liable.

so when we talk about finding live rounds on set, we heard them talk about that, they found live rounds on set, that sun acceptable. he keeps referencing the fact that the fbi was brought in and the confirmation of such will occur at quantico. he discussed the events moving forward. that is standard operating procedure. the sheriff says they will keep investigating the scene and keep investigating what happened. if they -- if it rises to the level that probable cause exists for a crime that has occurred, they determined such, they will make an arrest and charges will be filed. otherwise, they will submit it to the d.a. that's what always happens and the d.a. is who determines what charges they will be filing, what crimes they believe occurred. when the fbi is brought in, it's brought in because of jurisdiction or resources. here they're brought in because

of resources. new mexico is making a position that they're doing everything under their purview. they have cooperation of other agencies to make sure it's as thorough and accurate as possible. i want everyone to think back, this is a case that i brought up before. when a camera assistant died on set, the assistant director served time in prison for involuntary manslaughter and that was the director with ten years of probation. because of that absolute reckless disregard standard that i mentioned earlier. what is interesting there and why i bring it in here is because there were shoe complaints on the set of the reckless disregard, so many safety protocols that were ignored that were under the purview of the director and that they then proved that it led to that camera assistant's death. so we have the sheriff sayinger with aware of the safety complaints that occurred, we're aware of allegations of alcohol consumption the night before.

again, we recovered live rounds. wait for confirmation on that. if they knew a live round was in that gun, if the assistant director was negligent and allowed the live rounds on set by the armor, by any kind of lack of protocol and safety, that's when we can expect charges to be filed. >> harris: i want to big deeper from what we heard. we're going to work on the facts that sheriff mendoza of santa fe county and the prosecutor just gave us. there was a lot to get to. something that emily just talked about reminds me -- i don't know if our team has the 911 call -- but when that assist about the director -- when the prop people were mentioned and a 911 call, it starts to your point, emily, of there were problems on that set before this happened. so my big question is who is at the top of the food chain here? is it alec baldwin or somebody else? how does it work?

if safety is always a thing with gun and you heard the sheriff say that, it's always a thing, did alec baldwin there were potential live rounds among the ammunition that they found? was there even a possibility of this happening and was he aware of it? >> there was a possibility. look, emily lied out the law beautifully, knew or should have known. let me give you alleged facts. these are facts that would be considered. one is that a stunt double discharge add prop weapon that he was told was a cold weapon. this happened less than a week before. there was complacency on this set. ian hudson that film add death scene on the very same set, he said this. he said when the rounds were released, these were blanks fired at him, he said behind him the crew was in direct line of fire and they had shields.

again, these were blanks. when they shot at me, i did feel the blanks hitting my face and body and i would feel the wind from the shotgun. it was heavy and strong and talk to my fellow cast. we all agreed how scary it was, how real it was. he went on to say, remember the last time this happened was the 1993 death of an actor to a problem weapon. he said they compared that set and how it felt on that set to this 1993 -- >> harris: talking among themselves. >> yes. >> harris: and of the 16 that were closest to what was going on and they feel like they talked to all 16 at this point according to the sheriff, then they've got what you just described. that is a big potential chunk of putting this puzzle together. if people can talk in that much detail, there's some expertise in that setting.

>> kayleigh: comparing the death of brandon lee. >> harris: that is interesting. you mentioned complacency. the sheriff said complacency on the set is something that state and industry should look at. from what he knows, there was complacency. we've got that 911 call. remember, the script supervisor was placing the blame on the film's assistant director in the 911 call. let's listen. >> harris: he's supposed to check the gun. he's supposed to do that. i'll tell you -- i don't know how this works. and dagen mcdowell and guy benson are here. i want to bring in our family for an hour. but you know, i would imagine if

you had been around movie sets as much as alec bald when and so on and so forth, there might be someone that would say if you're handling a weapon, you too need to know a quick two, three-second check of whether or not there's a bullet in that barrel. you need to know if there's a round of any kind it in regardless of what you may know about any round or any kind in it. you need to know there's not one. if you're sitting on the stump of a church, at the set, and you're going to point the gun at the camera and there's people around not with childs, what are your thoughts about this, dagen? >> this is something that you learn as a child from friends and family when you're taught how to handle a gun and when you're taught gun safety. do you always check the weapon to make sure it's not loaded. again, on a movie set, there's -- emily can weigh-in on

this. there should be a greater expectation for alec baldwin because he's not just an actor on the film. he's a producer, number 1. a cold gun means there's not even a -- >> harris: there's nothing in it. >> nothing in it. not even a blank in the gun. the biggest question is how did live ammo wind up on this set, who brought it on to the set and who knew about it and who allowed it. one thing i found interesting from the sheriff that of the five rounds of ammo, they discovered blanks, which is powder, no lead, they discovered dummy rounds, which is -- has -- it's meant to look like a bullet, it's no powder and lead traditionally and then actual what they believe to be live rounds. there was also of the three firearms picked up, there was

also a plastic nonfunctioning revolver. that is a prop gun. any reference to the weapon that alec baldwin discharged is not a prop. it's an actual gun. a prop is something that has no ability of firing a blank or an actual live round. but it's interesting to know that there's a plastic nonfunctioning revolver involved. >> harris: why did they hand him that? we won't know as he sat on the movie set. >> the chain of responsibility traditionally, it's the armorer who hands the actor or actress the gun. and why -- this is something clearly they're investigating. why did the assistant director, hall, grab the gun off a cart. >> why. >> we should point out this is a

low budget production. they were under the gun -- >> harris: which fuels the complaints. >> it was under the gun. the union camera crew had walked off the set earlier that day. they were trying to cut costs, trying to get the day in. again, therein lies the recklessness that was bred. we can say it's recklessness. it's beyond complacency. because somebody is dead. >> harris: guy, i want to come to you. i'm not going to profess to know what we don't know. i won't fill in the blanks about the weapon because he wasn't all that specific. he said and f. lee pieta. it's a historical weapon and beautiful guns. based on what dagen said, there's no way that you can get an f. lee pieta confused with a problem gun unless they're dynamic replicas of one another.

it's not been described this way. just the thought of what dagen just laid out, how different these would look, feel and require. >> there was a live round in it. my assumption here and we don't want to assume much, is that alec baldwin believed entirely that it was a gun that if he pulled the trigger, there would not be a real round flying out. that's what happened and someone is dead. we heard from the two lawyers. near really experts on the law. i'm not. as a law person, the world negligence immediately came to my mind as soon as i heard some of the initial details about this story. how on earth is it possible for that type of catastrophic lethal mistake to happen on a film set.

i understand it was a stressful day based on the walk-out. there were some simmering tensions from the 911 call. perhaps people had been drinking the night before. we heard about those rumors. maybe not everyone is at the top of their game. nevertheless, how are there any live rounds on set whatsoever when there were real guns on set? i don't think listening to all of those questions and all of the answers from the sheriff and the district attorney, i didn't learn a lot of information. the one piece that really did stick out to me is that at least based on the sheriff's framing of it, this was not just one real bullet. they believed there were multiple live rounds, multiple bullets on set. how on earth was that possible. >> harris: humans made that possible. guns down walk to the set with bullets. we don't know which one. now we know they had 100 people

on the set in conditions where there was some questionable things going on. so that's -- those interviews will take some time, i would imagine. real quickly and then we want to move on. i want your final thought. >> just a final thought that the sheriff referred to the producer as actor alec baldwin and producer. they're looking as him as more when he received the gun. >> harris: so much coming out of santa fe new mexico today where a woman died on the movie set of "rust." the irony, there was trust that they were passing around apparently. but with a gun that was potentially loaded with a live weapon. i say potential because we have to wait for the crime lab to figure that out. but the sheriff seemed to be confident of it. halyna hutchins is dead. the director, joel souza, he's

recovering. we'll cover more on the story if it happens. i want to get to the senate judiciary hearing on capitol hill where the nation's top law enforcement officer, the attorney general, merrick garland has been in the hot seat for hours and it's not getting any easier. we're watching live senator ben sasse. a few moments ago, senator tom cotton of the great state of arkansas lit up the room. watch this. >> let's turn to your outrageous directive sicking the feds on parents at school boards across america. when you crafted that october 4 memo, did you consult with senior leader at at the fbi? >> my understanding was that the memo or the idea of the memo had been discussed. >> anyone at the fbi express any doubt or disagreement or hesitation with your decision to issue that memo? >> no one expressed that to me. >> no one? >> to me, no one expressed that

to me, no. >> a lot of them have contacted us and said they did. >> i'm sorry? >> a lot of fbi contacted me and said that they opposed this decision. >> i doubt they spoke to me about it. i didn't speak to any one. >> all right. judge, you've repeatedly dissembled this morning about that directive. for instance, about the national security decision. chuck grassley asked you a simple question why you'd would you sick the national security division of the justice department on parents. john cornyn asked you the same thing. you said it wasn't in your october 4 memorandum. it was in a press release from your office here in front of me. you were going to credit a task force that includes the national security division. what on earth do the national security division have to do with parents expressing disagreements at school boards? >> nothing in this memorandum or

any memorandum is about parents expressing disagreements with their school boards. the memorandum makes clear that parents are entitled and protected by the first amendment to have vigorous debates. we don't -- the justice department is not interested in that question at all. >> okay. so even in that case, what is the national security division, judge? these are the people that are supposed to be chasing jihadists and chinese spies. what does that have to do with parents at school boards? >> this is not about parents at school boards. it's about threats of violence. >> let me turn to that because you've said that phrase repeatedly throughout the morning. threats -- violence and threats of violence. we've heard it a dozen times this morning. as senator lee pointed out, the very first line in your october 4 memorandum refers to harassment and intimidation. why do you continue to tell this committee that you're talking about threats and threats of

violence when you're memo says harassment and intimidation? >> i said it involves other types of duct. the statutory definitions of those terms and the constitutional definitions of those terms involve threats solve violence. >> let's look at those statutes. section 223. that statute covers the use of not just telephones by telecommunications devices to annoy someone. so are you going to social the fbi on a parent's group if they post on facebook something -- >> the answer to that is no. the provision that i was particularly drawing to his attention was 2261 a, which was to engage -- >> i wasn't talking about 2261 a. you mention 2213. that's what i mentioned. you also told senator klobuchar that this memorandum was about

meetings and coordination. what i have in my hand here that i'll submit to the record, a letter from one of your u.s. attorneys to all of the county attorneys, to the attorney general, to all sheriffs, to the school board association of this state in which he talks about federal investigation and prosecution. it's not about meetings. it's about federal investigation and prosecution. did you direct your u.s. attorneys to issue such a letter? >> i have not seen that letter. >> it's three pages. three pages of spreadsheet about the federal crimes that a parent could be charged with to include the ones you cited. the main justice make this spreadsheet, judge? >> i don't have any idea. my memorandum speaks about setting up meetings. convene meetings -- >> judge, we've all read your memorandum. we heard you dissemble about your memorandum. i have showed one of your u.s. attorneys sending out a letter

about federal prosecution investigation and lists in detail the federal statutes. you talked a lot about intimidation and harassment. have you issued a memorandum like your october 4 medium random about black lives matters riots? >> in the summer of 2020 -- >> a lot of crimes committed. >> they were under the previous administration. >> what about this? it's no doubt -- even though parents at school boards aren't within federal jurisdiction, there's no doubt that federal officials are. you keep saying senators. have you stated an investigation into the harassment of kyrsten sinema in a bathroom because she won't go along with the democratic party's big tax and spend agenda? that is a sitting united states senator being harassed in a bathroom. >> i don't know if the senator has referred the matter to the justice department or not.

>> you've cited as a basis for that directive the national school board association's letter of september 29. was that directive being prepared before september 29, before the school board association letter was issued? >> i don't believe so. >> okay. that answers the question. >> i already answered that question. >> you keep citing the school board letter and news reports. one of the news reports that you mean is from loudoun county, virginia. >> that's not what i was talking about. >> you keep citing news reports. that's the most prominent news report that anyone in america has seen. that refers to scott smith whose 15-year-old daughter was raped. she was raped in a bathroom by a boy wearing girl's cloths. the loudoun county school board covered it up because it would have interfered with their transgender policy during pride month. that man, scott smith, because he went to a school board and tried to defend his daughter's

rights was condemned. do you apologize to scott smith and his 15-year-old daughter, judge? >> senator, anyone who's child was raped is the most horrific crime i can imagine and was entitled and protected by the first amendment to protest to their school board about this. >> he was cited by the school board association as a domestic terrorist. we know that letter and those reports were the basis -- >> no, senator that is wrong. >> this is shameful. this testimony, your directive, your performance is shameful. >> that's not -- >> thank god you're not on the supreme court. you should resign in disgrace, judge. z. >> general garland -- >> i'm not sure there was a question there. the news reports i'm talking about are not the news reports in that letter. there were other news reports that everybody here has heard about, subsequent reports that everybody has heard about.

there's nothing in this memorandum and i wish if senators were concerned about this they would quote my words. this memorandum is not about parents being able to object in their school boards. they're protected by the first amendment. as long as there's no threats of violence, they are completely protected. so parents with object to their school boards about curriculum, about the treatments of their children, about school policy, all of that is 100% protected by the first amendment and there's nothing in this memorandum contrary to that. we're only trying to prevent violence against school officials. >> harris: okay. i want to point out two things. each senator gets seven minutes. that was more than eight minutes long and it wasry riveting. you're watching and listening to

the man that has so much power in america. he's the top law enforcement officer that went around local officials on the grounds because the school union said to the white house, do more and go after domestic terrorists. meaning the parents. direct correlation which they then apologized for, the national school board association late last week. kayleigh, senator tom cotton said you ought to resign in disgrace to the attorney general just now. >> kayleigh: i think he's exactly right. tom cotton hit the nail on the head when he brought up scott smith. the boy in that case, we don't know his name. but the boy in a skirt that at the time was alleged sexually assaulted that young girl, scott smith's daughter, the 15-year-old in the girl's rest room. that boy was found guilty this week. last week the attorney general of the united states, attorney general of the united states, was asked points blank, what do

you make of this case? it's gets ten tons of national attention. he said it sounds like a state case and i'm not familiar with it. i'm sorry. okay. it's a state case. he's not looking into it. fine. it's a stays kate -- case. it's a state issue. why is he federalizing, you're serving the police power of the state in one case, federal ideaing what should be a state case? but the other case he hide behind the sexual assault of a 15-year-old but he hides. >> harris: real quick, this just round of questioning. we're following this hearing and we promise you we're isolating those moments for you. you need to watch this. this is the attorney general for the united states. when senator cotton says it's a

good thing you're not on the supreme court, he's referencing that this was obama's pick. senator mitch mcconnell said not on my watch am i going to bring him for a vote. >> kayleigh: yeah, do you remember what the democrats did? they were kicking and screaming. he's a moderate, he's middle of the road. how a dare you confirm him? >> harris: is he? >> kayleigh: clearly not. he has no understanding or maybe it's political convenience. beyond that, he was asked about the national security division. very important here. he wants to take members of the national security division and pillow moat them to a task force. guess where this division was prescribed? the patriot act. he said i won't use to it go after parents but he's going to take people from this nfc board that was created by the patriot act. >> harris: right. he won't walk back any of this. i said, it sounds like he needs a lawyer sitting next to him trying to decipher what was

going on. we're watching right now live senator tom tillis of north carolina. while the hearing has been going on, we've been gathering hot points for you. senator john kennedy of louisiana pressed attorney general garland moments ago on coordinating with the white house. watch it. >> in drafting the letter, the national school board associated collaborated with the white house. they worked on it together for several weeks. we know the national school board association wants the white house and the association that was unhappen my with the letter. national school board association sent the letter to the white house and the white house promptly called you and said sick the fbi on parents at school board hearings. that's what i mean.

the white house is the prophet here. you're the vessel. isn't that correct? >> senator, i did not speak with anyone from the white house while i worked on this memorandum. this memorandum reflects my views that we need to protect public officials from violence and at the same time protecting parent's ability to object to policies -- >> i get that. i heard your testimony. >> harris: senator kennedy, we know he doesn't mince words. you're just a vessel, aren't you to attorney general merrick garland. >> emily: i want my attorney general to be a master of law. >> harris: you wants him to be extraordinary? >> emily: yes. who we're seeing now is a men that is less than ordinary and a master of evasion. he comes out there and says it's his job to protect public officials against violent threats. that requires an additional action for it to be pulled under

federal purview. for kayleigh's point earlier, when it suits him it's a matter of state law. when it suits him, it's a matter under federal jurisdiction. niece why executed a memorandum on if four corners of the heater that was with the nsa and the white house. he's not walked back, not defends himself. he's continueses to not satisfy any of our questions -- >> harris: why won't he walk it back in some people say they don't say sorry because they think they're complicit. sometimes they're stubborn. we don't know. in this instance when senators are saying will you apologize for something that seemed like it was adjacent to the language in the school board association memo, which they have walked back, will you to the same? >> i can't speak to why he

can't. all i can speak to is the fact that he for some reason is unable to intellectually articulate a reason why he did not investigate further than the four corners of the letter, why the opening sentence of his mohammed random, deploying federal resources against parents relied on an untrue fact of the hysterical had wringing letter a disturbing site in harassments and threats. then he doubled down and said i need to protect against violence and threats. he reminds me that he's unequipped to hold this position >> harris: even early on in the senate hearing, merrick garland was pressed not all things are violence are at a federal level. he agreed with that. so why go around local law enforcement that is -- nobody called for help. nobody called for help.

>> he agreed -- >> emily: he keeps flip-flopping. because he already crossed that line of waivering jurisdictions, of not being truthful. what consequences have we seen in the past with people that are untruthful under oath? throwing that out there. that's why he dances between the two. he's not been held to the fire yet. what i continue to see is the fact that he crosses that line. he's a master of evasion and convenience when it sues him. >> harris: this is no cake walk nor guy benson was the house version last week. this is back-to-back with merrick garland. if nothing else, he's had a chance to brush up on a few things that he was asked about last week like a young child

getting raped at school. he's also had an opportunity to rethink the memo and the letter that he wrote out of that sba memo. how is he doing? >> the spin is weak because there aren't good substantive defenses for any of this. i think it's just watching this and seeing him spin and dissemble, the word that senator cotton used a number of times. it sounds unfathomable to me that the attorney general would use his power at the justice department and bring in the fastball to intervene on this matter if not for that latter from the school board association which according to documents from the washington freebie con and others, there was collaboration between that group and others. this is an interest from the

political left and the justice department got their gears mushing for that reason. that is an inescapable reason here. you made this point well, harris. everyone here, every person on the virtual couch is opposed to violence or threats of violence. there's no place for that in our society. we all agree that that's not rocket science here. that is a point of broad agreement and consensus. why some scatter shot examples of people going too far, throwing a threat and it has been condemned, when that happens, there are state officials and local officials that deal with it, the federalizing of that so-called problem or epidemic or whatever, there's no actual underlying justification that i have seen for that beyond the politics of it and the coordination that i mentioned a moment ago. that ultimately is the crux of the problem here and garland doesn't have a good answer for

it. >> harris: wow. dagen, i'm not going to mix apples and oranges but i'm going to call it a little bit of an adjacent case. the fbi has a lot going on. the one thing that i'm thinking about has to do with simone biles and the other young women that were gymnasts and the assaults on those women over and over as they were following their dreams in a sport. the fbi is busy. they have to clean that up on aisle 7. they have a lot going on. why does the doj and their leader, merrick garland, why do they believe that they step in here where law enforcement is already handling it? >> the doj is getting and merrick garland led by merrick garland is getting involved in this issue because this is a replay -- the beginning of a replay of the obama biden justice department, which was

highly politicized. the doj was used as a political weapon. i point to the irs case under obama and biden. merrick garland is trying to clean up what he has been saying he kept repeatedly saying even to senator cotton, this is not about parents at school. it's about violence and threats of violence. cotton says that's not what your memo says. he's trying to sweep up what he's done so far. i want to quickly point out that -- the first amendment protects speech unless it unambiguously calls for the use of force that the speaker clearly intends which would result in the likelihood of violence being real and eminent. that's the standard that he's not talking about. >> harris: i wonder if we'll hear from fbi agents about this. i don't know. i don't know what their recourse is, maybe they're parents and saying we have so many things to do. wouldn't that be a fascinating

interview to watch? meanwhile, the hearing continues. hear on fox news, we'll bring you all that we're watching with you monitoring that and the highlights. thanks to guy, dagen and my team on the couch, kayleigh and emily for watching "outnumbered." here's "america reports." >> merrick garland on capitol hill testifying before the senate judiciary committee in firing hearing fuelled by a doj memo directing the f.b.i. to investigate angry parents at school board meetings. i'm john roberts. >> i'm sandra smith, this is "america reports." senators in intense moments pressing garland on that memo, asking him to rescind it. lawmakers expressing concern over the chilling effect they fear it will have on free speech in this country.