>> and that is your last call. thanks for being with us tonight. make sure you go to greta wire.com. the o'reilly factor is next. good night from washington, d.c.. not another tooth. [ coughing ] ♪ ♪ >> eric: happy monday, everyone. i'm eric bolling, along with kimberly guilfoyle, bob beckel, dana perino, brian kilmeade. i'm glad you're here. 5:00 on the east coast. this is "the five." the conversation starts right now. first, obama care on the docket. supreme court will hear the case and will get results before next year's election. and speaking of the president, he thinks americans are lazy. donald trump has choice words for the criticizer in chief. you will hear all about it. gloria cain defends her

husband to greta van susteren in an exclusive interview. >> that would have been something that was totally disrespectful of her as a woman. and i know that's not the person he is. >> eric: and then jerry sandusky that penn state coach accused of sexual assault is still getting tens of thousands of dollars every year from the university. unbelievable. "the five" starts right now. ♪ ♪ >> eric: right to the top story. the supreme court announced it will hear the obamacare case. the states brought on the suit and the big question is the individual mandate constitutional? and is there any indication that obamacare could be in trouble? rasmussen poll out today says 55% of americans want it repealed. only 37% don't. kimberly, go through the process right now. supreme court will hear it.

what is next? how do the judges fall? 5-4, what do you think? >> kimberly: that is what the smart money is on, 5. 4 keep in mind it could go 5-4 either way. especially when you look at the most recent jurisprudence on this, where you have two justices from two different appellate courts ruling, conservative justices and backing up obamacare. this one is anybody's to win. not certain which way it will go whatsoever. at issue is whether or not the individual mandate should be struck down, whether or not you're able to compel an individual, you know, an american citizen to actually purchase healthcare insurance. if they fail to do so, can you penalize them? >> eric: the pushback is what kimberly points out. congress in the constitution that should be applied where the government is telling you to buy a product. >> bob: if you read what the appellate court says, that's what they made their case on. on the commerce clause. if they go by the law and the

precipice, there is no douse in my mind that this obama healthcare law will be made the law of the land. the supreme court will agree to it. or if they do their job. if they do -- >> eric: curiosity, what precedent -- you are citing a precedent. i don't see a precedent. >> bob: if you look at the appellate court decisions they head a sum of things about the commerce clause. but supreme court can do what they did and become hacks and play the political game. and basically make a decision that had nothing to do with the law and had everything to do with the politics. gore versus bush. >> eric: the commerce clause, application of commerce clause. the government telling every american they have to buy a product. demanding you buy it. >> dana: this is the most amount of states come together to challenge a federal law. 26 states. there is a state of virginia lawsuit that could be combined to be heard. one thing is the public opinion of this law got worse

over time. you remember president biden said the more people learn about it, the more they'll like it. that's not true. white house doesn't talk about the bill. they prefer they don't hear anything about it. last week in ohio when there was a vote, 88 counties, all counties voted against the individual mandate. the problem for people out there who don't like it, public opinion doesn't matter when it comes to the supreme court. the reason that the question is being asked is not just because of a precedent. there is a division amongst the courts. that is why the supreme court will take it up. >> eric: can we talk about the national federation of independent businesses is also suing the obama administration on grounds that the constitutionality of the law far exceeds anything that they see, is in this book right here. what do you think when the job creators are around 70% of all new jobs in america think it's unconstitutional and will hurt their business. >> brian: it's interesting. go back to 55% in the open. 55% of the country wants to repeal according to the

rasmussen poll. i believe president obama can't lose. here is why. it's unpopular. the stat read is unpopular. if it's rejected sentiment goes his way. this poor guy passed a massive healthcare bill but the bad republicans don't. if it's rejected it's better for the country and economy. that is good. but for president obama he becomes a sympathetic figure. if it's held within the supreme court, then he wins. he won on every level. >> bob: i am not going to say good point yet. the fact of the matter is if this is done on the law, it may be like brown versus board of education. i would not be surprised to be a unanimous court support this law. because it ought to support it. if they don't, they are playing politics. like i said. dana didn't like it. >> dana: this is what you are going to see tomorrow morning? both sides. the right and the left is going to set it up that whatever the decision is, it will be absolutely right or absolutely illegitimate. the debate will rage on. >> eric: at least from one of the big debates is let's

fast forward. they are going to hear the opening arguments in spring. it may be decided by 2012. if bob is right and mitt romney is the g.o.p. representative, this is going to be so hard for him to deal with. right smack dab in the middle -- >> bob: plus the fact if the republicans hack out and they go against it for political reasons because they're not supposed to look at polls by the way. i wouldn't look at that poll particularly with all due respect to rasmussen. the republicans will be left with this dilemma. there are so 40 million people uninsured in america. what are you going to do about it? >> eric: another dilemma. president obama for the second time in a couple of months called americans lazy. take a listen to this. >> we have been a little bit lazy in the last few decades. we take for granted people want to come here and we aren't out there hungry selling america and trying to attract new businesses in america. >> my take on that is it's disgusting. he allows other countries to manipulate currencies and make

it impossible for to us do business and then he calls this country lazy. >> bob: i think it's disgusting that you put him on the air. >> brian: he's fantastic. >> brian: the fact that the president of the united states called us soft, we lost our competitive edge and now we're called lazy. this has to be the guy that addressed the jets at halftime in the patriot act game because they came out so flat. he is trying desperately to flatten out our country and diffuse us and get us off the high horse. why is he so determined to bring us down? >> bob: brian, as usual, we take this out of context here. and what he was talking about was business. he said we've gotten somewhat lazy. >> brian: i know. >> bob: he said we haven't gotten -- >> dana: like to keystone pipeline. >> eric: who is being lazy. what do you mean american businesses are lazy. >> bob: we've all gotten lazy. >> eric: he is an apologist. and he apologized to muslims

in cairo in 2009. >> bob: so? >> eric: he apologized to the french in how americans look to europeans. >> bob: don't apologize for french for us. >> brian: for eating snails. whose idea was that? >> dana: it's the last two decades. that would include the clinton period which i thought was the garden of eden when it comes to businesses. president obama has a jobs council. i don't know if he is not listening to them or what. this is the second time that president obama said this. they have done the research on the left and this language works. the small business owners that they would be offended and insulted. >> eric: blame everyone. technology is lazy. killing jobs in america. the real corporate is overregulating and overtaxing. >> this is his approach. >> kimberly: i agree with

dana he is getting advice this rhetoric will work. i don't get that. this is libe a parenting approach. he think he is will motivate the people. okay, kids we want to be emancipated. >> reverse psychology. >> this is taking it to the "n"th degree here. this is taking it oversported jobs and they're lazy to get the jobs here because they don't care about the american jobs. it was a business conversation. >> eric: what do you mean lazy? >> bob: i'm saying if you take a company overseas to get cheap labor and profits over there. >> eric: it's not lazy. i >> bob: i consider it

anti-american. >> dana: you will be arguing globalization is -- >> bob: part of that is true! >> eric: no global warming is laziness. we have to leave it there. herman cain's wife gloria gave an exclusive interview to greta van susteren. we will tell you what she is saying about allegation against her husband. e-mail us at thefive@foxnews.com. we'll be right back. ♪ ♪ if you've just signed up for medicare or will soon,

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♪ ♪ >> brian: why didn't someone tell me that bob beckel talks the whole time in the break. >> bob: you're up. >> brian: thank you for cue. that is the red light. take it as well. welcome back to "the five." what does herman cain's wife think of the misconduct allegation against her husband? we're about to find out. gloria cain sat down with exclusive interview with greta van susteren. here is a preview. be sure to watch it at 10:00 eastern. watch. >> to hear such graphic

allegations and know that that would have been something that was totally disrespectful of her as a woman, and i know that is not the person he is. he totally respects women. >> brian: gloria cain comes out and we meet her family tonight. what about the timing of this? things had calmed down for herman cain. does it bring everything back up? >> dana: i don't know if they calm down enough. if you look at polls just out he went from 27% lead -- with romney down to 14% in one of the polls i just saw today. it's a good thing for herman cain she did this interview with greta. i thought gloria cain came across as credible. gracious. and very calm in a stormy sea. that is something you really want in a first lady. >> brian: bob, as a strategist, if she was going to come out would it have been better in the middle of it? this is gloria allred saying you are served to put them

back on stage. >> bob: let me stop at this very moment and say that is a good point. i mean it. i do think she was quite gracious and good television person. she said the right thing. she was referring to a gloria allred woman who i think that woman is a scam. whose boyfriend is going to come out today and say something. but it's a week late. the other problem is he keeps saying this won't be the last. he knows there will be others. the or thing i might say with all due respect to her, what do people expect she was going to say? >> dana: but a good performance. >> bob: but did anybody expect there would be anything -- i don't think people expect or were surprised to say she supports him. >> brianhim.

>> kimberly: i like her. i thought she was consistent and authentic and came off genuine. she didn't come off as a professional politician that is spinning you left and right from center. i think she is actually very credible. of course, she stands by her husband. they have been married. that should count for something. she said they this is behavior and conduct inconsistent with what she has seen in the course of 43 years. i think bringing her out. she was supposed to do an interview prior to the story breaking. that i delayed it out. >> brian: tell me what you think about the timing of this thing, the interview tonight. we see herman cain suffering in the poll two weeks after it broke. >> eric: this is important, the gingrich number. if you watched the foreign policy debate saturday night, newt gingrich showed himself being the smartest man in the room. the one who really could be at the top, you know, he has obviously personal issues as well that probably when he gets to the top politico will

find a way to take his legs out, too. herman cain is on the down swing. gloria, fantastic, beautiful lady presents wonderfully. too little too late. >> bob: the other problem is -- by the way, i'm delighted to see people finally picking up on the gingrich point. i'm not going to say anything. but you know, it is true. that kind of precipitous fall sends to happen. when you have a situation like this in politics, there is a ten-day period to absorb and sink in with people. they don't follow as closely as we do the average person. when it hits, it hits. this drop doesn't surprise me. it's led by women. as you expect. >> brian: not as big as perry's. i want you to see the people around cain when people use the fact he is african-american, whether he wants to be called black or african-american. they use it against him. the question is his integrity. let's walk. >> black people know that if herman cain had his way, their

lives would be diminished. >> herman cain tells them what they want to hear about blacks and in turn they embrace him and say see, that proves we aren't racist. >> brian: how inappropriate is it for the harvard profession the only say what he said on npr. >> kimberly: inappropriate. is he listening to words coming out of his mouth? what kind of professor is that? that's divisive and class war faiwarfare and racist. it diminishes half the electorate that doesn't agree with what he has to say. >> eric: the use of the -- >> bob: the use of the word menstrol from the guts of the civil rights movement. holding the lat terns, menstrils were a code word for racism which is what that is. i will say this. in that interview, thaw had an

interview in ann coulter who was as klos to racist i heard. our blacks work harder than her blacks? who is she talking about? ann coulter never run across a black that she knows to make a determination. >> brian: that is not fair. i don't know who she works with. but the point is the republicans as opposed to republicans. you don't see republicans attack each other because they're black. >> eric: it all fits together. you don't hear the liberal left making remarks about president obama. >> bob: you say that and you dismiss it. sorry. >> eric: no, just the ann coulter part. >> bob: which is right, as bad as that was.

>> dana: both president obama nor herman cain, neither of them uses race. this is happening on a different level. presidential level they don't use it at all. we should follow their lead. >> brian: but we force them to comment on if it other people on outskirts comment on it. >> dana: they have risen above it. >> eric: good point, brian. that is two >> bob: before we started the show i said the first person to say i made a good point. did you see "60 minutes" last night? it wasn't a good night for nancy pelosi. and alpha republicans on capitol hill. we'll tell you about the insider trading allegations. and also tell you that it might just be legal next on "the five." ♪ ♪

♪ ♪ ♪ ♪ >> kimberly: welcome back to "the five." last night, "60 minutes" exposed possible corruption on capitol hill and named names, including former democratic house speaker nancy pelosi and current republican speaker john boehner. the allegation against them. insider trading. explosive story. twitter was going nuts about this last night. some people watching sports but those in the know were watching "60 minutes." this is something that people should be outraged about the if allegations are true. >> eric: a couple of things quickly. the allegations probably are true. they found out they were true not just allegation in the book. >> peter sweizert books.

>> eric: congress people are exempt from rules we're bound from. especially me on tv. if i stock about a stock -- if i talk about a stock, i have to tell the world i own that stock. or on wall street if you do what they are accused of doing in the book and on "60 minutes" you would go directly to jail. case and point, martha stewart went to jail for doing what -- >> kimberly: no. insider -- >> eric: but she sold stocks because she had insider information. >> bob: wait. it's not illegal. using the word allegation is really, i mean we are going over the edge here. the number of members of congress who vote on bills that affect the stocks every single day. if you look at all the buying and selling of stock, it's not against the law, it's not an allegation. >> eric: it's wrong on the left. >> bob: it's not wrong.

they should be put in a blind trust. not buy itself. i was hired by wall street firm for the sole purpose of knowing what votes -- >> eric: that is different. that is absolutely different. that is influencing, that is lobbying really. it's legal. let me give you a scenario. >> brian: the 2008 collapse is about to happen. zillians like us, we're not sure what is happening but we know something is wrong. in a private meeting nancy pelosi learns or dennis hastert or somebody learns wow, this whole thing is going to collapse. when you leave that room you worry about the constituents but you call your broker. it's not illegal to say i have to get out of stocks get my money in my mattress quickly. there shouldn't be a problem with that. if they change that rule, to make it you have to put everything in a blind trust, not only will people not want to be in congress, they'll have to help wanted signs. there are $174,000 --

>> bob: jump on wall street as having sadly representative before. the guys have v the best insider trading information. >> kimberly: dana? >> dana: i think that the word "allegation requests might be too strong. evidence was thin. except for propondrance of experience of inappropriately. a blind trust would help them. 82% of the american people think congress is not looking out for them. so this certainly doesn't help. i thought it was a strange defense. former speaker pelosi, one thing they put out is they can't believe that the conservative author got away with writing this book. this book does not just implicate her. "60 minutes" comes out and first thing they say is we verified the information as well. >> kimberly: they did. both sides release statement.

do you have something? >> brian: i'll tell you in break. >> kimberly: fabulous. he wants to make a third good point. this is interesting about the closing relationship between politico and msnbc. the daily caller did analysis of a one week total of msnbc broadcast and identified 24 appearances by politico reporters. and editors. of course the course of nine out of 16 showcase, one of politico editors and reporters. what do you think of the story? >> dana: i don't watch that network. i heard that they are on a lot. i follow it on twitter. it is cozy and it's convenient. i guess it's someone that might look at another network and say it's that thing. they work in tandem. >> brian: why would politico do this. they were in the middle and start off as a political blog

getting success. then they attack the left. which is the political strategy is that? >> bob: the whole idea of the segment to say it's politico more liberal, it is. look at reporters on it. most have been more liberal than otherwise. the stories have been good and solid. a good magazine. >> they are more than attacking to the left. >> look at the numbers, though. >> eric: jonathan martin, aka mr. betsy fisher. married to betsy fisher. a lead writer in the story to herman cain, sexual accusation on herman cain. 138 stories on herman cain. meanwhile, all the stuff going on in the obama administration, solyndra, nine stories. fast and furious. three stories. >> dana: when it is your own story and breaking it, it

stands to reason you are doing that. i talked to two different reporters and i asked the politico accusations against herman cain, if you had had that same information, would you have run with it? the woman i respect said it wouldn't have passed muster in my newsroom. >> bob: you're right. they did break a story. you can argue the huffington post is way to the left. politico, with their reporting is good. the editorial is more liberal. no question about that. they got past me, which is remarkable. >> eric: the bachmann headache issues, i remember the front page stuff on perry every time he made a gaffe. all perry. >> dana: you are the one watching. >> eric: i watch it -- >> bob: they started the story about obama being depressed. now you could argue --

>> dana:ing that the "new york times." "new york times." they do. they have regular features segments on the morning shows. on msnbc. morning show, political briefing, andrea mitchell report on political playbook. they got a sweet, cozy deal. >> bob: the other cable news networks is going to try to follow "the five" and have a morning talk show like this. good luck! >> kimberly: good luck. wouldn't want to be yeah. all right. the president says americans are guilty of torturing people. is that fair? we'll debate it next on "the five." ♪ ♪ [ male announcer ] you love the taste of 2% milk.

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>> dana: welcome back. saturday night's republican debate candidates were asked about waterboarding. later, president obama had a response. >> herman cain said i don't see that as torture. michele bachmann said that it's very effective. i wonder if you they are uninformed out of touch or irresponsible. >> they're wrong. it's torture and contrary to american traditions and contrary to our ideals. it's not who we are, not how we operate. we have don't need it to prosecute the war on terrors. >> dana: you have to love the tough questions that come to president obama. let's be clear to something. enhanced interrogation was

critical to the bin laden killing. if they really believe that none of this was, it was all illegal, they don't they do what hayden suggested and throw away the evidence and intel stream? >> brian: enhanced interrogation, you have to give it to the experts. the c.i.a. doesn't get up in the morning and think let's torture somebody today. no, you know what their goal is? to make sure none of us die. we don't to explode or plains going through buildings. they got on the line and said am i allowed to do this? they are. they did it. >> eric: john yew is tremendous. great guest. >> brian: he cannot be out debated on this. they piece it together to take down major guy after major guy. >> bob: the best interrogators in the f.b.i. who will say to you that water boarding is a lousy form of

getting intelligence. you can't trust it. it's forture. give away stuff. the f.b.i. said over and over again this is silly, ridiculous. >> dana: somebody else said something. the defense secretary said there is balanced intelligence by interrogation. >> bob: are you suggesting that the waterboard had something do with bin laden's death? >> dana: absolutely. that's what panetta said. >> kimberly: panetta is on record. leon panetta. >> eric: there were several, 1060 wartboardings of khalid sheikh mohammed who in one waterboarding he named cure your of bin laden -- courier of bin laden. so they took the ball and round with it and found him. >> kimberly: right. that led to the compound. that is documented.

>> bob: is that the best you can do? it's torture and un-american and unconstitutional. >> eric: people behind it -- >> bob: they should have gone to jail. yelling, loud music. the parking dogs -- >> kimberly: a caterpillar on your shoulder. >> bob: i am talking about waterboarding. >> dana: what if it was something else? you would have picked something else. >> bob: dogs barking i would consider that torture. >> eric: they go through this. you know what the bigger question is? the debate -- >> brian: the debate question is sensational like the one given to president in hawaii. the bigger question we get a guy today and he is a high value target. what do we do with them? we whip out the army manual available online to know how to defend against it. a bad strategy. political move. so what i'm saying is right now if we get a guy tomorrow,

where does he go? gitmo? no. trying to empty that. >> dana: what they do is they don't pick them up anymore. they kill them. the capture or kill doesn't exist. it's kill. >> bob: look at what they said about waterboarding, the debate? they had nothing to say. >> eric: we agree. >> eric: gitmo is open but it's one of the most expensive detention center in america. his point is not to close gitmo but make it a tougher place so it's not club fed. >> kimberly: they get harry potter books and movies and translater for them. people are killing americans. they're killing us. >> bob: they have been down there for ten years. you don't think we waterboarded them enough. >> kimberly: three people

have been waterboarded. quit the exaggeration. 20,000 have gone through training and have been waterboarding. americans. so let's stop getting crazy about this. >> dana: that has been several years and we could talk about this all night. but up next, do you know that penn state is still paying, the alleged sex abuser more than most americans make every year. we have details next. ♪ ♪ daddy, come in the water!

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♪ ♪ ♪ ♪ ♪ ♪ >> bob: we talk about something that used to drink something that nobody remembers. sweet or whatever. welcome back to five. jerry sandusky the former penn state football coach accused of sexually abusing eight young boys is reportedly still

receiving $60,00,000 a year from the school. let me make my point about. this being a former football player and around the game for a long time. one thing about keeping secrets, when it comes to plays and play book. this is outright, outrageous, disgusting. the idea that they would pay the guy a pension, maybe legally theyvy to pay him a pension. pew we will talk about the ridiculous bail he got, reduction. how the guy is still around and getting money. still around the university. essentially, it's. this when he was told to retire, or decided to retire in '98, he was going to be the next head coach of penn state. it doesn't work out. other major schools would want this legendary defensive coordinator to head it up. what was the deal cut in '98? you can stay on campus, you

can have full access, you will stay on salary. i'll keep my mouth shut and you keep your mouth shut? it pops up in 2002, how surprised, i just ask you thi this, could paterno have been? >> there is no surprise. think of hit the way. it's the programs that are doing illegal things to bring athletes in. they all keep hush-hush because it's the program and they don't want to bring the program down. this is different. all bets are off when you have a 10-year-old child in a locker room with a disgusting pervert. forget the program. they all should go to jail. joe paterno aided and abetted a child molester the. >> brian: you don't have to report someone to the authorities, is that correct? >> kimberly: they need to change the law. there is move in the new york to change the law of the mandatory reporting. there are other issues with

this. mike mcqueary shouldn't be at penn state. he was an eyewitness to what was going on. saw the act. >> brian: how could she? >> kimberly: breaking it up. he's not a munchkin guy who can't get in there and save the kid. instead he tells his dad. why? he wanted to make sure how to handle it to protect penn state. >> bob: there is another aspect of this story i found not quite as outrageous but plus. a woman judge decreased the bail substantially and he got out and is walking around. she volunteered for the charity which he used as cruising ground for judge kid. >> kimberly: the district judge lessy did that. >> dana: one of the best articles on this is from megan mccartal.

the division of how corrupt it was and layers of corruption go so deep one thing that penn state needs to do bring in a former prosecutor type. they come in and says whatever we find, it's going to be open and transparent. that is the only way. >> eric: how is this not a violation of ncaa rules? >> brian: the ncaa is sitting back for now. >> eric: why? buenos aires they hav -- >> brian: they have to step forward. >> bob: the thing you talked about the ncaa fined teams and thrown people out and paid much big prices paying athlet athletes than children. the ncaa ought to be -- even if they don't have a rule about this, they should have been out front and center and said something about it. one of the mealy mouth sycophants. they're scared of joe paterno.

this is one of the most outrageous acts on football ever. >> kimberly: this is ongoing on campus. how about this? channeling the grand jury investigation. this was a multiyear grand jury investigation with people. this is not a big surprise. they knew. they are calling witnesses directly involved with penn state. all of them knew. still they didn't do it. >> brian: are you embarrassed for the frank o'harris that said to leave joe paterno alone? the media railroaded him out of the position? >> eric: embarrassed for the student body. if you want to support paterno that is fine. but there are people, kids who have been molested by the guy going through serious pain. >> dana: people are surprised to find out sandusky

was getting $55,000 to retire at 55. whatever. >> bob: frank harris is a great running back but he ain't phi beta kappa candidate. and something you will never hear in china. a couple announced they are having their 20th child. that is right. congratulations. "the five" will be right back.

♪ ♪ ♪ ♪ >> eric: welcome back to "the five." this is a story that never ends, literally. did you hear about the reality tv family the duggers? they're expecting their 29th child. i know you really want to talk about the story. >> bob: i was until brian started to describe the woman. >> bob! >> bob: that was disgusting. if you can get a reality show, it's the break in "the five." five times a day. >> brian: 20 kids, what happens to the u taberus. is there any nutrition? >> bob: this is a good thing that it's not china with a one-child policy. i believe the people are very religious. part of some of the religious organization they want to promulgate a lot of children.

this is going -- can you imagine keeping up with them? >> brian: the last one was touch and go. pound-and-a-half. three months early. >> eric: that gets scary. >> kimberly: this is inappropriate from a medical perspective in terms of putting the life of the baby, and the mother in danger. what kind of publicity is going on? >> dana: but they can have as many children as they want. i guess the question is the one you brought up at some point are the children in danger? >> eric: or are people watching the 20 and counting and saying hey, if they can do it -- >> dana: apparently they are. it's not easy to make it to the "s" block. >> eric: i have two kids. i'd like 18 more. >> bob: do you know how insane would be in your housism had two kids in the house and people walk in the house and they're young -- we got to go. >> eric: tim tebow, the denver broncos, since bill maher has taken