entire investigation, we can't assume that and of course as you know, or i hopefully the ranking member would explain, there was no log or actual documentation showing what they intended to present. i did go into that meeting yesterday would full intent we would likely postpone based on something being produced. nothing was produced and i'm still waiting. and i said in the news conference yesterday that i would wait all night. and we did have people here all night in hopes that those documents would arrive and that we would then postpone while we evaluated documents. the gentlelady may resume. >> assuming no executive privilege had been, had been invoked and that we had only the offer to give the documents, if, if the chairman would consider, after receiving the documents, continued discussions and negotiations, wouldn't that have been the way to resolve this matter?. >> if the gentlelady would

further yield, if we were being offered in return for postponement documents and then we could judge them both, majority and minority, and then reenter negotiations as appropriate, we wouldn't be here today. >> mr. chairman, i believe that, that in light of that, that some clarification on what the offer expected and what in fact occurred is in order rather than proceeding to the contempt vote. >> would the gentlelady yield? >> yes, sir. >> and would the chairman give me, since you were trying to explain that, may have little bit more time? >> all right. >> all right. the, i said this before, the attorney general did not ask for the ending of the investigation. what he was trying to do, and he spent quite a bit of the little 20 minutes that we with had together, saying that he had limited

personnel and his personnel were being tied up in going through these millions of e-mails and documents and whatever and he basically said, at some point, he just wanted to see if we could move towards bringing the contempt situation to a conclusion, moving towards it and that's what he, as i understand it, what he was asking for. not, i mean he understood well that the investigation was going to go on because we've got a lot to investigate but, but he did not, he talked about the contempt and that was my understanding,, gentlelady. >> you can see, mr. chairman, finally there is a, dispute even on what went on in the room and i think it merits a continuing discussions with the justice department.

>> if the gentlelady would further yield? >> yes. >> i trust that the justice department is hearing my interpretation. if they want to deliver documents they're welcome to. jenna: you're witnessing this back and forth between congressman issa and congresswoman norton and congressman cummings about what to do next essentially. as we glad it right now, the vote to hold eric holder in contempt, the vote by this particular committee, could still potentially happen today but we're also getting some word that potentially this committee will recess to take a look at this executive privilege that's been exercised by the president to decide what to do next. our chief congressional correspondent mike emanuel is live on capitol hill. an interesting day so far, mike. let's talk a little bit about what we've seen. give us, catch us all up if we're having viewers just joining us what we've seen and where we're at. >> reporter: jenna, the hearing itself was delayed 20 minutes or so because the administration asserted executive privilege over the documents related to the

"fast and furious", botched gun-running program if you will. and so it seemed to catch republicans off-guard. they huddled behind closed doors for 20 minutes. chairman issa came out said, our intention has never been to hold the attorney general in contempt of congress but the justice department fought them every step of the way. they still have investigation to do to get answers about what went wrong with "fast and furious". then chairman issa addressed this new wring dell, -- wrinkle, the assertion of executive privilege. >> more than eight months after subpoena and clearly after the question of executive privilege could have and should have been asserted, this untimely assertion by the justice department falls short of any reason to delay today's proceedings. >> reporter: and there's definitely been tension in the room. you've heard some democrats defending the attorney

general. the top democrat on the committee, elijah cummings, saying essentially chairman issa has been holding the attorney general to an impossible standard over the past year. you heard delegate eleanor holmes norton of the washington, d.c. area, why not delay? see if we can work out a deal with the justice department. the republicans would appear to have the votes to pass out a contempt resolution. then it would go to the house floor but first things first. they're still hashing out the details and still trying to analyze what executive privilege means to this matter going forward, jenna. jenna: let's stop right there for a second, mike. as we're seeing on the screen of congressman chaffetz who has been very active in the investigation and some speculation that popped up over the last hour and only speculation at this point is that the president is invoking executive privilege because he somehow connected to this case. congressman chaffetz asked the attorney general directly back in december of 2011, quote, have you spoken to president obama about

"fast and furious"? the attorney general answered, i don't think that i have. i see the president and then he interrupted by that. congressman chaffetz asked the attorney general directly about this matter and certainly something that will be discussed as we go throughout the day today, mike. as we heard anything from the justice department, from the attorney general himself today? >> reporter: we've heard from administration officials saying that the reason the executive privilege was asserted was because these are internal deliberations and so they believe, they argue, that these are protected communications that they can ascertificate executive privilege to say to the legislative branch and other branch of government, you don't get access to that documentation. we've seen these fights before. quite often they end up going to the judicial branch. so you have a third branch trying to work out a spat between the two other branches of government. the executive and judicial but what should not get lost in all of this, in this case,

you had a federal border agent who was killed. so there is also a lot of people who are saying the family of brian terry, 18 months after his tragic death deserve answers about how high this went in the u.s. government. who thought these tactics were acceptable. who signed off on it. and some of those details. and so, essentially we heard from the attorney general last night, here was some of what he had to say on this issue. >> well, i have to say give the extraordinary nature of the offer that we made and given the extraordinary way we shared materials to date that we are actually involved more in political gamesmanship as opposed to trying to get the information they say they want. >> reporter: justice department officials say they have made an extraordinary offer. those who have been investigating "fast and furious" saying we haven't subpoena ad briefing from the attorney general. we've been subpoenaing documents. it is time to turn over documents. so that is why they're going

forward with the contempt resolution. jenna: the three branches of government at work today. an extraordinary story we'll continue to follow. back to mike emanuel as news warrants, gregg. certainly one of our biggest stories if not the biggest story of the day. gregg: it could have a huge implications in an election year. for that we turn to bill kristol of "the weekly standard." he is editor there and a fox news contributor. bill, if the president was not involved, executive privilege does not apply. if the president was involved, three things, either holder was not telling the truth in front of congress, and or the white house was not telling the truth when it denied the white house and the president were involved, and the president himself may not have on about telling the truth when he made statements including in an interview on camera with univision he knew nothing about it and was not involved. so how big is this? >> well, we'll have to see but i would say this. there is only one person who can exert executive

privilege i believe, that is the president of the united states. he is charge of the executive branch. this takes it to a different level. this is no longer a dispute between a congressional committee, chairman darrell issa and the attorney general, hard to follow details of about documents. this is now the president saying you can't see these documents to congress presumably. and presumably to the majority of the house of representatives. so i do think it takes the dispute to a different level with the president right in the middle of it. gregg: with an election coming up in just a few months, if holder was taking all the heat for this and maybe to some extent, some of the heat for refusing to appoint a special prosecutor over national security leaks, now this really elevates it to the re-election campaign of the president? >> yeah, it could. i myself -- [inaudible] more sympathetic to them than a lot of other people are. not a huge fan of some of these congressional investigations.

this is a case where there has been pretty consistent evidence of executive branch and the justice department not really being forthcoming. i don't think it will be a case, where the democrats will be able politically to say this legislative branch run amok. this is political crusade. this is just election year politics. the congress has been trying to investigate this for a year and a half. they have been pretty diligent about it. i think pretty responsible about it, honestly. time after time, evidence of the justice department not be being fourth coming. now we have the president personally exerting executive privilege on internal justice documents and hard for me off the top of my head why they wouldn't be shared with the relevant committee in congress. gregg: bill kristol, thank you very much. jenna: we're look back into the committee hearing going on right now to see if the vote for contempt will come up. one of the questions we should ask is how did we get

to this point? from thousands of illegal firearms put into the hands of some of the most dangerous criminals to the death of a u.s. border agent to a showdown in government which we're all witnessing live? we'll go to our correspondent who has been reporting on "fast and furious" from the very beginning, william la jeunesse, is live from los angeles with more. william? >> reporter: jenna, to follow up on your conversation you had with mike, last night the attorney general said these deliberative materials, these internal records, and i'm quoting, showed no intent to mislead or deceive yet today in his letter to the president, the attorney general said releasing these would have, and i'm quoting, significant and damaging consequences. so today's hearing is about contempt but strip it down to its origin 18 months ago, this is still about finding facts. who approved "fast and furious" and why? we don't know. now the contempt citation newly drafted is specific we're told who is responsible for the cover-up, the so-called, post-february 4th documents. was it a few bad u.s.

attorneys in arizona, an atf officials who lied to washington as alleged, or, did holder's own staff engineer a tightly-wound, air-tight story that isolated and exonerated the attorney general and his inner circle? >> when did you first know about the program officially i believe called "fast and furious"? >> not sure of the exact date but i probably heard about "fast and furious" for the first time over the last few weeks. >> reporter: now sources close to the investigation believe the documents, if they were in fact harmless as holder has described last night, that he would have released them. my sources however believe these documents risked opening a pandora's box. one document would lead to another. instead of closing doors others would open. investigators could unafter vail their story. remember during this period of time from february to december, ken melson and u.s. attorney dennis burke were both still in the mix.

they were still in office. would their e-mails support this contention that the department of justice was entirely ignorant of the tactics of "fast and furious"? and that officials under burke and melson intentionally misled washington? that is basically the allegation. and would these deliberative materials support the ag's contention or would they suggest something was wrong? the irony is, us guys, those under scrutiny that drafted and approved the february 4th letter, had nothing to do with "fast and furious". they may never have even been to arizona. back to you. jenna: william, stand by if you will. this is big story we'll cover throughout the day. back to william in los angeles as we get more on this. gregg: stunning developments today. the for eight long months the attorney general of the united states has refused to fully comply with subpoenas from congress. suddenly at the deadline, invoking through the president executive privilege. which holder said he would not invoke. we'll be right back with more.

gregg: we are watching what's happening on capitol hill. stunning developments in a committee that is poised to hold the attorney general of the united states in contempt. this would be a committee contempt citation referred then to the full floor of the house of representatives. this coming really over the course of the last hour and a half in which the president has authorized invoking executive privilege to protect documents solicited by this very committee. let's turn now to ed henry who is standing by live at the white house. you know, ed, we did a little research this morning and there were several statements coming from the white house over the course of the last year in which they have categorically denied white house involvement in "fast and furious". the president's involvement in it. in fact we looked up a univision interview which the president also said knew nothing about it. no involvement, zero. now this.

what's the sense there? >> reporter: well, there is an important distinction right there to answer your question first. then i will take you inside the deliberations here at the white house and how this came to be. when the white house has been saying for the last year, the president, his top aides here at the white house have not been involved in "fast and furious", nothing that happened this morning necessarily contradicts that. what they were referring to is whether the president himself was involved in the gun-running operation in approving it, involved in that investigation itself. what they are are ascertificating this morning on executive privilege is something different. on the internal deliberations within the obama administration, about how to deal with the fallout from that scandal that you mentioned, over the last year or so, as it has been bubbling, the internal deliberations, they're exerting executive privilege about conversations between justice department officials, maybe justice department officials and white house aides. there may have been, i stress, may have been white house aides involved in how to deal with this story. there may have been, i

underline, may have been, the president himself involved in some of these conversations in recent weeks and months about how to deal with the investigations on the hill. how do deal with media inquiries from many folks what really went down here but that is separate from the actual investigation itself. so what white house aides are say this morning the president agreed with exerting this executive privilege because this is principal, george w. bush asserted it six times. bill clinton asserted 14 times. ronald reagan, republican asserted 24 times. what did they assert? the executive privilege idea internal deliberations, congress, could equal branch government. they can't go on a fishing expedition in words of white house. let me tell you how this went down. eric holder i'm told by senior administration initial asked the president to invoke this the president i'm told in last 24 hours personally signed off on it. i'm told by one official he

basically said the president, quote, feels strongly this is a protected group of documents that does fall under the principle of executive privilege. so look, the bottom line is, the president getting involved here at the last hour raises the stakes big-time. it raises even more questions now, big-time, whether white house aides were involved in any sort of cover-up. i stress if they were involved in any sort of cover-up. if they were involved in some sort of deliberations here how to deal with it but it does not prove any sort of cover-up and it does not prove that the president was involved in "fast and furious", gregg. gregg: i gotcha. very important distinction. ed henry live at the white house. thank you very much. >> reporter: thank you. jenna: ed mentioned george w. bush used executive privilege six times. president clinton, 14 times. coming up a little more context when executive privilege is used, why and by which presidents. that is next on "happening now." ♪

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gregg: well the white house asserting executive privilege over documents related to the "fast and furious" investigation. the move made after attorney general eric holder could not cut a deal with the chairman of the house oversight committee, all of it happening over the documents related to the botched gun-running scandal and now we're waiting for the committee's vote whether to hold the attorney general in contempt. charlie hurt is a columnist for "the washington times.". before today it was just a problem for eric holder. today it's a problem for the president, isn't it, charlie? >> absolutely. if nothing else this executive order is a, it is an admission that this scandal reaches all the way into the white house, either the, earlier stages of it or the efforts to sort of deal with with the fallout of it.

that as you point out, that is a major development and something that we were, very clearly led not to believe before today. gregg: now i was just talking to our white house correspondent ed henry who says look, the white house is making a distinction here. they're saying yes, it's true the president never had anything to do or advanced notice or involvement or knowledge of "fast and furious". we still stand by that. what they're saying is, executive privilege is being asserted here because more recently, after the disclosure of all of this there were discussions in the white house as to how to deal with the political fallout. i'm not sure those discussions however, would necessarily protect the documents over at the justice department unrelated to those political discussions. and so this may be a false application of executive privilege. >> absolutely. just because you had one conversation last week doesn't mean that executive

privilege applies to everything that goes from that discussion all the way back to february of 2011, or prior to that even. you know, what we see here, there is no great high principle here. what we see here is the white house is, wants to conceal documents that relate to the effort to deal with it the fallout of this. it is called a cover-up. that is what the white house, and the reason that they don't want this information out there is not because, you know, national secrets, security is at stake or anything like that. it is to conceal an embarassment. that is what the white house wants to conceal with this, with exerting executive privilege. gregg: today, suddenly very inconsistent with everything holder has been saying. i looked at the transcript of his under oath testimony before senator grassley's committee, he said, no, i'm not invoking executive privilege and he agreed to the notion he wasn't

entitled to it. now all of a sudden it is just the opposite. if nothing else it really looks bad. >> it looks terrible. one thing the politics of this are absolutely fascinating. it could be that the politics here are that the white house wants to, you know, to keep this embarassment from becoming public. whatever it is. the other, the flipside of it is, you know, maybe the white house would rather talk about this than talk about the economy. either way it doesn't bode very well politically for the president. gregg: charlie hurt. thank you very much. >> thanks, gregg. jenna: as the white house asserts i should say executive privilege today over the "fast and furious" documents this is a important reminder that they're not the first administration to do so. in order to put this in some perspective for this rick folbaum is here with more on other times, rick, that a white house has used executive privilege. >> reporter: jenna it happened really throughout the history of our country dating back to president george washington who also

refused to comply with a request from the house of representatives. in washington's case the house wanted documents related to a treatied that had been negotiated with great britain. president washington did not want to hand over and did not hand those documents over. thomas jefferson asserted the privilege claimed the documents request in the treason trial of aaron brrr! must be kept secret that it would endanger public safety. supreme court overruled his claim and jefferson ended up releasing documents. in more modern times, presidents trum manned and eisenhower exerted executive privilege. the most noteworthy case involved president nixon during the height of the weight gate scandal. he invoked the privilege to keep turning over auto yaps on charges brought against members of the his administration. the supreme court decided that the public interest in getting the truth was more important than the president's privilege. the court said there is valued need for protection of communication between

high government officials and those who advise and sis them in the performance of their duties. this is the first time president obama exerted executive privilege as has been stated today. according to the white house, jenna, the since the reagan administration invoked 25 times. three times by president reagan, one by the first president bush, 14 times by president clinton, six times during the presidency of george w. bush. and now of course once by president obama. back to you. jenna: important perspective for us today. rick, thank you. gregg: an astonishing and maybe very troubling turn of events happening in washington today over the last hour hour, 1/2. the president invoking executive privilege to try to protect long-sought documents from his attorney general. we're going to explore the political impacts of this and more coming up. >> a subpoena, among other things.

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out of the wrong hands-- a $29 dollar value, free. get the protection you need right now. call or go to lifelock.com to try lifelock risk-free for a full 60 days. use promo code: norisk. plus get this document shredder free, but only if you act right now. call now! lifelock service guarantee cannot be offered to residents of new york. jenna: welcome back, everyone. the bottom box of your screen is a live look at the committee in the house still determining whether or not they're going to vote to hold eric holder, the attorney general, in contempt of congress. as of right now we do expect that vote to happen. the question about why executive privilege is being asserted at this time so the department of justice doesn't hand over these certain documents related to "fast and furious" to this committee, the reason as to why that privilege is being used now is not clear at this time. as we mentioned there has been some speculation, only speculation, at this point, it may be because the president was briefed on the program. but as ed henry points out,

it doesn't have to be the president. it can be top advisors. it can be top officials. back in february, congressman jason chaffetz asked attorney general holder specifically about who knew about "fast and furious". take a listen. >> thank you, mr. chairman. thank you, mr. attorney general for being here. i had an opportunity in the judiciary committee to ask you questions on december 8th of 2011. i had asked you if you spoken to president clinton, president obama, or secretary clinton or secretary napolitano. you said that you had not spoken to either of those three about "fast and furious". is that still true today? >> well, with regard to secretary napolitano, yes. secretary clinton. yes. >> i'm sorry, secretary clinton, you have spoken with her about "fast and furious"? >> no, i'm saying, i should say no. secretary napolitano, no. secretary clinton, no. i had passing conversations with the president about my fact testifying in connection with "fast and furious". jenna: so again the question as to why executive

privilege is being used is something we'll be talking a lot about today. chris wallace joining us, anchor of "fox news sunday". chris, some important perspective to you. this is interesting twist to this story but broadly speaking how are you seeing this executive privilege being asserted and how should we place this in the context of everything else that is happening at the white house today? >> clearly executive privilege is very unusual. it is not extraordinary, as rick folbaum pointed out. it was asserted six times in the bush administration, and most famously in 2007 when there was the big furor over the firing of u.s. attorneys and a congressional committee wanted karl rove, who had been involved in some of those discussions with the justice department to testify. i just got off the phone with karl rove. they asserted executive privilege in that case and would not let him testify. karl said the key issue there was not that president bush had been involved in these conversations but that

karl rove as a non-confirmed member of the white house staff was an extension of the president and to subpoena him to testify was in effect subpoenaing the president. so this question of executive privilege is not necessarily mean that the president is involved. it can be white house aides who were involved. other people like that. he said it was, what surprised him was the fact that this was over justice department document, not white house documents. the cabinet officials, because they are subject to senate confirmation, are not covered by executive privilege. they are in fact, as i say, subject to the advice and consent of the senate and the fact that they would assert executive privilege there raises the question certainly if there were communications if not directly between holder and the president, between the justice department and white house officials and some of these documents they're seeking may have involved white house

officials. so that certainly raises that. i think it is important to make clear while this is highly unusual it does happen from time to time. six times in the bush administration. and i think before we also jump down the idea, down the road of this is going to be a constitutional crisis, in the case of karl rove, while he was, they were voted in contempt by a committee, it did not go to the full house and it did not go to the supreme court, and after bush left office they worked out a deal that allowed karl rove to testify. so often times, while it is very dramatic it does not end up becoming a constitutional crisis or a supreme court kise. jenna: as you point out, as far as the committee we have not seen a vote in the committee yet today. we're going to see if they take a break, chris. tryinging to figure out what they will do next. what will happen next? what will you be watching for here? >> obviously the next big step is to see whether or not this committee votes holder in contempt.

that obviously raises the stakes in this a great deal. that has very little impact itself. but sends it to the full house. if the house votes holder in contempt, that then becomes a federal case if you will. and it will be also interesting to see what the white house says, if they do go further, as to what they were specifically claiming in this executive privilege. why they say that this does involve the president or the president's aides in this case. the one thing that karl rove says specifically is that he felt that it was on very unusual to involve justice department documents. in fact he couldn't remember a case. only white house documents. maybe some of the documents that the committee is asking for involve white house aides. therefore 2 it would become white house documents that gets into kind of a shady area. there are also the political implications of this. that cuts both ways. on one hand, "fast and furious" is a very troubling

scandal the justice department or the bureau of alcohol, tobacco and firearms would have been involved in the failed gun-walking operation and some of these weapons ended up being used by the cartel, in one case, in the case of 1a tf agent, were used to kill brian terry. on the other hand, if you get into a situation where this is seen highly political and house republicans are involved in some issue and not the economy, some kind of political back and forth, this may fulfill the white house narrative that house republicans are more interested in hunts than they are in fixing the country. so i think there is a danger of this backfiring on both sides. there is some political risk on both sides in this case. jenna: some interesting analysis for us today, chris. thank you very much for that. we'll just dip back into the hearing now. congressman langford speaking, republican from oklahoma. >> we were not aware the president was engaged in deliberations in response to actions after february 4th, what we requested.

the reason we're even interested in these documents the department of justice gave congress a false statement february 4th, 2011, about doj's knowledge of "fast and furious". december the 10th brian terry was killed with two of more than 2000 guns allowed to walk in the hands of known or suspected criminals. february the 4th of 2011, the department of justice sent a letter to congress which they stated the allegation that atf sanctioned or otherwise knowingly allowed the sale of assault weapons to straw purchasers who transported them into mexico is false. atf makes every effort to interdict weapons purchased illegally and to stop their transportation to mexico. we know multiple people in the doj were involved in drafting of this letter and we know their statement was false. march the 22nd, 2011, the president spoke to univision and he said there may be a situation here where serious mistakes were made. if that is the case we will find out and we will hold someone accountable. may the 2nd of 2011, doj again stated to congress it

remains our understanding that atf's operation "fast and furious" did not knowingly permit straw purchasers to take guns into mexico, a very carefully worded statement to state something that --. gregg: and at the very moment that the deadline was supposed to be met by the attorney general a rick holder to manned over documents, instead through the permission of the president invoking executive privilege. what happens now and what's the political fallout if any at all? we'll have a fair and balanced debate with two political pros in just a moment. stick around. [ male announcer ] this is genco services -- mcallen, texas. in here, heavy rental equipment in the middle of nowhere, is always headed somewhere. to give it a sense of direction, at&t created a mobile asset solution to protect and track everything. so every piece of equipment nows where it is, how it's doing or where it goes next. ♪ this is the bell on the cat. [ male announcer ] it's a network of possibilities -- helping you do what you do... even better.

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gregg: well, this is a congressional committee on capitol hill. lower box, right-hand side, about to hold a vote on whether the attorney general of the united states should be held in contempt. and now the white house, top right-hand side, is involved. joining us, gretchen hamel, executive director of public notice. juan williams, fox news

political analyst. juan, this was just a battle between, i shouldn't say just, a battle, vigorous one, fought over many, many months, between congress and the attorney general but now because the president has invoked executive privilege he is sucked into it. what is the political implication in an election year? >> well obviously it doesn't look good for the white house. this is i think the intent of darrell issa, the chairman of the committee all along. i think this was and is a tremendously large fishing expedition. i analgize it to moby dick he is looking for something, anywhere in this case. despite the lack of evidence of any wrongdoing. >> you think his motive was to get into the white house somehow? >> i think it was totally political. gregg: really? >> if you look at the facts of the case, and we just heard a rescitation of some of those facts from the

committee, it largely involves that letter which had false information from justice about whether or not weapons had gone into mexico, weapons were found at the scene of the killing. gregg: february 14th letter. >> nobody ever has proven those guns were used to kill brian terry. what the white house and justice department has done is to try to make available all the information, including information they say that came from alcohol, tobacco and firearms officials falsely given to justice that led to that letter but issa's committee has refused to call those atf officials. they have instead focused on the political office of the attorney general and by extension the white house. gregg: yeah. gretchen hamel, what do you make of this? what are your thoughts about whether this helps, hurts? i mean you heard the statement a short time ago from chris wallace that this could really backfire on republicans. it could look like a political witch-hunt, which is sort of what juan is

saying here. >> well, it could backfire on both republicans and the white house. republican haves to own this. they did this. they have to show that their intent was meaningful. they were really trying to get to the bottom of what happened here so they could reform it. let's recall the hearing earlier. last hour a democratic member said we need to have real reforms here. in order to have real reforms you need to know what the problem was and what actually happened and where the breakdown was. that is what house republicans are trying to do here. that is the message they need to get out. as for the white house, president obama will have a problem. in 2007, he said, senator obama, would have more respect for the coequal branches of government. he also called on president bush, wondering what he was hiding by using this privilege. gregg: sure. >> so we have to beg the question, what is he hiding now? and also is he really fulfilling the campaign promise having coequal branch and having a transparent government.

gregg: hold the thought. on the left-hand side of the screen, representative clay. we'll go back into the committee as it warrants. gretchen and juan will stick around. we'll squeeze in a quick break here but a fast-changing series of events on capitol hill and the white house as the president of the united states invokes executive privilege to protect documents of his attorney general. we'll be right back. i'm a home in a high-risk flood area. it doesn't look risky. i mean, phil, does this look risky to you? nancy? fred? no. well it is. in a high-risk area, there's a 1-in-4 chance homes like us will flood. i'm glad i got flood insurance. fred, you should look into it. i'm a risk-taker. [ female announcer ] only flood insurance covers floods. visit floodsmart.gov/risk to learn your risk.

>> it's sad. it's disappointing. it shouldn't have come to this. nobody likes doing this. this is not about eric holder. it is about the department of justice and justice in the united states of america. have the guts, i hope we have the guts and the per

veerance to get to the bottom of this. we have nearly 2000 weapons purposefully, purposefully given to drug cartels. we have hundreds of dead people in mexico. we have a dead united states border patrol agent. and we have a government that is with holding information that we can not only get to the bottom of it but that we can fix it. gregg: jason chaffetz. that begs the question who did authorize it? the president in march of 2011, sat down with an interview for univision and said quote, i did not authorize it. eric holder, the attorney general did not authorize it. back now with gretchen hamel, executive director of public notice. juan williams, fox news political analyst. gregg:. they stand by the statement that the president didn't know about it and didn't authorize it. ed henry, white house correspondent, said what they're doing with the executive privilege invoking it because there were after the fact discussions at white house how to handle the fallout of the whole thing. i'm not sure juan, and i

want your thoughts on this, that that protects the documents over at justice unrelated to political conversations about how to handle the pr? >> well, what we know from this morning's letter a letter sent by elijah cummings, gregg, who is the number two person on the committee, a democrat, he said in there that this executive privilege does not cover any of the whistle-blower documents. so that anything related to information about the cases still available to the congress. what is not covered of course under executive privilege would be communications between white house officials and justice potentially advising them how to handle the matter. just for the background, holder had some really intense meetings at the white house at one point. holder famously said the nation is cowardly talking about race and the like. some top white house political officials thought they should put somebody at justice, kind of help holder

with political issues, worried about his political instincts. holder reacted angrily. as a result there is no such person there but holder does stay in touch with the white house on political issues. gregg: the incident with axelrod, i know. gretchen, there have been either a couple of huge mistakes or misrepresentations. february 4th, holder tells congress, justice never permitted "fast and furious". that was false. he retracted it. may 5th he told congress he only heard about it a few weeks ago. that was false. he retracted it. and there are leaked affidavits to the wire taps that show holder may not be telling the truth a third time. you know, there may be explanations for it, but in your judgment does it look bad? >> well, where there is smoke there's fire. unfortunately perception is often reality in the court of public opinion and right now with all these, maybe

misstatements that he may have made but on record saying one thing. then having seen something else happen you are having the american public have to ask themselves these questions. is this guy telling the truth and it is now that they're holding these documents what do those documents contain? so you're having a lot of questions being asked here that could relate and come back to some political fallout for the white house. this is one of those things that could go either way depending what comes out the next few days. gregg: lawyers always tell their clients, if you have nothing to hide, don't hide it. >> exactly. gregg: juan williams, gretchen hamel. great to see you both. >> thank you. jenna: we'll take you live back to the committee hearing taking place right now. we're still awaiting a vote potentially that would hold eric holder in contempt of congress just within this committee. we're hearing from our team on the ground that is the pace is picking up. stay with us, more breaking news after a quick commercial break here on happing now. do you see it ?

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bill: fox news alert on the showdown over the fast and furious investigation. hello, everyone, i'm gregg jarrett in for jon scott. jenna: i'm jenna lee. this is continuing fox team coverage of the eric holder contempt hearing happening as we speak right now on capitol hill. earlier today the white house asserting executive privilege over the documents in question, basically saying, you're not going to get a chance to see them to this committee. mike emanuel is live on capitol hill. doug mcelway is at the white house. we'll start with mike. >> reporter: the assertion of executive privilege happened here at a time as the house oversight committee was about to begin its hearing on a vote to hold the attorney attorney o attorney general of the united states in congress. the meeting was delayed as

republicans hupb republicans huddled behind closed doors to determine what they should do now. it's opened up a whole lot of questions. a spokesman for jon boehner says an assertion of privy sepbgs alley suggests that the white house was involved in the fast and furious or in solved in the cover up. now they are asking a lot of questions. another leading republican on this panel asked this question, check this out. >> now the president of the united states has claimed executive privilege. that brings into question whether or not eric holder knew about it, and how much did the president know about this? why would the president claim executive privilege unless there was something very, very important that he felt should not be made known to this committee, and possibly to the public? >> reporter: now you've got republicans on capitol hill

saying were the white house the administration bending the law or were they lying? a whole lot of questions following this assertion of executive privilege as this house committee was just starting to move forward with this contempt of congress resolution. jenna. jenna: we're watching again the live committee hearing, that is darrell issa who was just speaking. congressman meehan was just speaking, there he is, he's a republican, mike. what have some of the democrats said in defense of the attorney general today. >> reporter: it's got even pretty tense. the attorney general came over here late yesterday, had a 20-minute face-to-face meeting with chairman darrell issa, they said he came over here in good face in order to reach a deal. here is a sample of what some of the democrats have been saying so far today. >> for the past year you've been holding the attorney general to an impossible standard.

>> i am horrified that you are going forward with this contempt charge when the president of the united states, and the administration have invoked executive privilege for the documents sought by the chairman. >> reporter: this house oversight hearing continues at this hour. we believe chairman issa would have the votes for a contempt resolution against the attorney general. at this point it's not entirely clear when something would come up for a vote, jenna. jenna: very interesting, mike. our mutual friend is working this story as well on capitol hill. he says the pace is picking up a little bit. we'll go back to mike as news warrants. first over to the white house, gregg. bill: look at the faces of the committee members and that pretty much tells the story let's get the story from the white house. doug mcelway joins us now. what are they saying about this? >> reporter: oured henry spoke with a senior administration

official this morning just when this thing started to break, and that official tolded that the claim of executive privilege does in the mean in any way, shape or form that the president was involved in the planning or execution of fast and furious. it does mean that the white house aides may have been involved trying to respond to media and congressional injuries once the fast and furious ball was rolling on the hill. and that would appear to come under one of two definitions of executive privilege as defined by the united states supreme court. here is a full screen of what the supreme court said about it. it allows the government to withhold documents and other materials that would reveal advisory opinions, recommendations and deliberations part of a process of which government policies are formulated. then president obama spoke out by the use of the executive privilege by the bush administration when the bush administration was called before

congressional committees over firings of some attorneys. then he said this. there's been a tendency on the part of this administration, the bush administration that is to hide behind executive privilege every time there is something a little shakey taking place. the administration would be best served by coming clean on this. now, executive privilege is nothing new for white houses, although this is the first time the obama administration has claimed it. it has been claimed numerous times in the past. the bush administration claimed it six times. bill clinton 14 times. george h.w. bush one time and the reagan administration three times. one last thing, gregg, keep in mind that there are huge political risks for both sides in this battle. we know about the obvious ones to the obama administration. the republican leadership was claiming that if the issa committee is perceived of as being too overzealous, piling on here that there is risk of stimulating the democratic base in an election feel when many

republicans feel all they have to do is point to the obama economic record to win their election in move. bill: it's a fine point that the white house is making here, well there may have been a couple of aides talking about fast and furious. legally there has to be a nexus between discussions at the white house and the documents sought at the department of justice and we wait to see whether that nexus can be proved here for the protection of those documents. >> reporter: great point. bill: doug, thanks very much. jenna: a lot of interesting questions about. joining us on the phone, chart krauthammer the columnist. let's take a step back from the point that doug was making there. he was talking about the arguments that each side would be making in their favor or not in their favor based on this story and the stories we are all following own a daly basis. if the economy, charles is the number one issue for the nation in general, then why does this matter? why is this so important, what we're talking about.

>> it's a constitutional matter, it's important in and of itself. elections come and go and these kind of issues remain. in terms of how it's going to affect things right now i think there are arguments on both sides that are quite significant. the republican leadership as we just heard from doug is pretty wary about getting anywhere outside their comfort zone, which is the economy, which is what they can and would win on if they can keep the nation's attention on it. they don't want to get distracted, and they could look as if they are being too aggressive. on the other hand the reason why this step by the white house is a real escalation and a risk to them is that invoking executive privilege brings obama and the white house into this. because they want to extend a blanket of protection to the

justice department they invoke executive privilege linking it to the white house and that creates a problem for obama. he's been insulated personally in the white house, mostly insulated from this. it's been a doj scandal, and this can spread. and that's why i think holder was trying to fend off the contempt citation by trying to offer this. what i thought was a ridiculous and almost insulting offer last night of a briefing on very inch distinct documents. the stakes are pretty high for everybody. jenna: what questions do you think our viewers should be asking in general, about the process of government and the leadership we have in place right now? >> i mean a lot of people will say, it's the usual partisanship, the usual fighting, of these parties which are so far apart, so

antagonistic. i'm not sure that's true, at least in in case, because we've had these executive privilege fights, as we just heard going back 20, 30 years, and these are serious constitutional matters. i was looking at the letter that was sent to obama where holder urged obama to exert executive privilege, and he quote this quite remarkable sentence. he says giving over the documents to the committee would inhibit candor of executive branch deliberations, that's fine, that's true, but then he adds and significantly impede the executive branches ability to, blah, blah, blah, effectively respond to congressional oversight. that's hilarious, him saying that if you withhold documents you're going to increase the effectiveness of congressional oversight. it just is complete nonsense and

is selfcontradictory. withholding documents does not make oversight more effective, it denies it, it tim styimes and blocks it. i find it almost laughable as to haf half of the justification. the other one is a traditional one, if congress can look over everything we do, then what can we do candidly. they are trying to not expose some of the internal course on it after a letter issued, a february 20th letter from the department of justice to the committee which said -- which was actually false, which said that there was no gun walking. the defendant later had to correct that and said they had said something that was not true. i think that is the heart of the investigation. what happened to those who blew the issue on the error, and were

involved in the deliberate falsification. jenna: one of the big questions is whether or not the family of brian terry ever gets the answers, will anyone really find out what happened here and what happened in the past. charles thank you very much for the time today. >> you're very welcome. jenna: more from charles, gregg, and whether or not we will see the contempt vote come up. gregg: republicans hold a majority 22-16 on the oversight committee. it is likely that a contempt citation will emerge today and it will be referred to the full floor of the house of representatives to decide whether the attorney general of the united states should be held in contempt of congress. what happens then? well, arguably a prosecution by the department of justice. but eric holder is the head of

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gregg: welcome back. the president of the united states invoking executive privilege to protect his attorney general from turning over subpoenaed documents to the committee you see on the left hand side of your screen, a committee that is about to make a vote on whether to hold the ag in contempt of congress. joining us now on the phone, douglas brinkley, political and presidential historian and a professor at rice university. douglas, thanks for being with us. look, president bush, president clinton on several occasions invoked executive privilege, and i well remember when it didn't workout so well for richard nixon. talk to us about its use, presidential use. >> well, you know, look, all presidents resort to it at one time or another, it's usually the act of frustration, whether

you're using an executive order to create a national monument in the west that western senators don't like or whether you're doing it like clinton did during the lewinsky era or richard nixon did during watergate. it usually points to an act of presidential h, berus. in this particular case i think you're seeing the politics of 2012 playing out on both sides. we often talk in history about august surprises, or october surprises in an election cycle. well this happens to be the june surprise, and history will mark what is happening today and connect it with what might happen next week with the supreme court on obama's healthcare, because in the end the republicans are trying to say president obama is an amateur at best, and it's not just us the conservative movement that is criticizing the president, but the supreme court is questioning his healthcare, and now congress is calling the attorney general for contempt. it's a flat out attack on the

executive branch going on right now. gregg: at first blurb it would appear to be troublesome for the president but it could go the other way, couldn't it douglas? typically when americans care about jobs and the economy and growth they may feel that this is a distraction and over stepping of authority by republicans in congress. >> it detracts, the story in a big way. it could work in president obama's favor. after all he has personal popularity hanging in there around 50%. congress is usually much lower, they are like 15% popularity on a good day. maybe president obama feels, let's have this fight now, let's draw the line in the sand and i will take on congress. the problem for president obama, i think if it was just congress he could -- it would work in his favor, but if he has the supreme court come in next week and say that this obamacare, or aspects of obamacare aren't, you know,

manageable, they are going to overturn some of those and not allow it to be the law of the land, then you see a president getting under attack not just by mitt romney's campaign, and by the conservative movement, but in a war with congress and the supreme court. in that case obama will have to appeal directly to the american people in an almost unprecedented way to not get too battered this summer and get into the fall season when he can debate mitt romney. jenna: this is jenna here. as we again are watching the committee, the committee's hearing, some of what you're talking about is being played out as we speak. i'd like to ask you a historical question if i could. one of our viewers wrote into us and had a good question just about executive privilege in general. rick folbaum last hour said executive privilege has been used dating back to our founding fathers. one of the viewers was asking whether or not executive privilege is to be used to protect the president, and the office of the president, or to be used to protect the country.

what is your take on it, doug? >> it's supposed to be for the country. in this case the argument president obama is going to be making is look this does nobody in the country any good to give up sources, and materials out about our border policy with mexico. everybody knows fast and furious had real problems, and i think that's clearly established, but to allow this kind of secret documentation or wiretap documents and all to come out isn't good for american national security. that's where the president is going to have to hold a very tough line, and that is the executive privilege at its best. at its worst is when you see bill clinton or nixon getting political heat and using it seemingly to protect themselves from inquiry. and the question is going to be, what is this issue, what is it that attorney general eric holder does not want to turn over? i think it does connect the

white house to fast and furious more, the fact that they are using executive privilege probe plea means the white house had some direct involvement in the program. gregg: the counter argument would be that the president isn't trying to protect national security or military or border patrol secrets. what congress is trying to get to the bottom of is who was misrepresenting, maybe even lying and covering up all of the events surrounding that infamous february 4th memo in which the department of justice said we didn't know about it, had nothing to do with it. later they had to admit that was false and they retracted it. that it seems is what the committee is after here. it's always, you know, not the crime, it's the cover up. and that would be the counter argument, won't it? >> and i agree with that. i think that's where the problem for the obama administration gets in. it's more of the cover up not the policy mistakes on the

border, serious policy mistakes, look, mistakes happened, but the cover up is what congress is really going after right now. in the end this is a glass half full or half empty situation. it depends on how you want to look at it. a executive privilege always creates could kind of problems because it seems undemocratic, if you'd like, with a small d, but in truth presidents have an enormous amount of power, and as you mentioned, or your show has been mentioning i think it's been used 24 times, executive power just since ronald reagan. the using of it doesn't strike me as odd, but the fact that this story is just starting to be unearthed and what is the white house involvement, and was there a true cover up? this will have legs throughout the summer. gregg: douglas brinkley, political historian thank you so much. we'll be right back we are following the events in the committee here. contempt of congress citation

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gregg: eric holder's department of justice now retracting yet another statement its made about fast and furious. this one came from the attorney general himself. william la jeunesse live in los angeles. william, what did the ag say and why did the doj take it all ba back? >> reporter: well, gregg you know we're talking about a case you might call called wide receive their happened during the bush years. the attorney general brought that up in his testimony before congress by saying, see, i wasn't the only one who did this. this all started under the bush administration. that isn't entirely accurate. the wide receiver case, and i've spoken to the atf agent who personally investigated that was not identical to fast and furious. as a matter of fact we told mexico, we asked that mexican police interdict the arms when

they crossed the border. they also lost surveillance but they tried to surveil. they had to retract that statement. i'll let you hear what he had to say. he said this a week ago in front of the senate judiciary. senator john cornyn had asked for his investigation and here is what the attorney general said if defending himself. >> if you want to talk about fast and furious i'm the attorney general that put an end to the misguided tactics that were used in fast and furious. and attorney general who i suppose you would hold in higher regard was briefed on these kind of tactics in operation wide receiv receiver and did nothing to stop them, nothing. 300 guns at least walked in that instance. >> reporter: that is inaccurate. the attorney general michael lieu casey was briefed on the ferdinand tkez case which is different than wide receive he. senator grassley put out a statement where the attorney general's office has now had to

retract that statement. it also raises gregg another question about these deliberative documents. if you remember, you probably don't, at one point in time in the production of the february 4th letter the attorney general produced 2,000 documents, deliberative documents between january 27th and february 4th leading up to who composed that have important letter they later had to retract. so it is not unprecedented, if you will, that the attorney general's office release documents that reveal the inner workings of the top officials at doj and how they prepare a letter for congress or something like that. that is really what we're talking about now in terms of exerting executive privilege that the deliberative documents should not be handed over to congress. so there is inconsistencies that might be revealed in that that maybe they don't want to show, but nevertheless at this point they are saying we don't want to release those. gregg. gregg: just to keep track holder has now retracted the mukasey

testimony, his may 5th testimony about when he found out about it and the infamous february 4th letter to congress, all three have been proven false and holder has retracted them. there are some new documents that show that top doj officials were aware of fast and furious early on, william, tell us about that. >> well, early on, and i have a copy of one right here from two top deputy attorney generals talking about fast and furious prior to the death of brian terry. that is important because in some ways they've claimed they didn't know about it or didn't know about the tactics involved. that is an area where there is a difference. nevertheless what they've claimed is we never made the connection, between wide receiver which we knew about and gun walking in fast and furious. the congress has maintained that it's impossible for you not to have known between the two, that

you would have raised the question, if you gun walked then aren't you gun walking now? it's the same office, same people in charge at atf, that you would not have done the same thing, and there are some emails that do indicate that they did make the connection between the two. gregg. gregg: william la jeunesse, thanks very much. we'll continue to follow what is happening here on capitol hill. jenna: lots of back and forth. the details over this case fast and furious. and there are some big questions about whether or not we're on the precipice of a constitutional crisis. that's been brought up. it's one of big parts of this story. another big part is the family of brian terry, will they ever get answers to this? we'll have answers to that after a quick break.

jenna: welcome back, everyone. taking you back down to d.c. where the committee hear something still taking place and we're waiting to see if that contempt vote of eric holder will come up. amongst this committee there you see, i believe congressman welch on your screen. everyone's had the opportunity to sound off today about this vote potentially for contempt. we're continuing to monitor that committee. and we'll bring you updates as we get them. meantime also down in d.c. we find our bret baier, anchor of "special report". bret, i would like to broaden out the conversation in anticipation of what we might hear over the next several hours of coverage and next several days of this story. our very own judge napolitano, charles

krauthamer brought up this is constitutionally significant. we could see a real challenge to the constitution. even a constitutional crisis. what do we mean when we hear that? what should we know and are we really at this point with this story? >> reporter: clearly this is verging on the battle between the executive branch and legislate tiff branch here. once you exert executive privilege, it is a conditional privilege and it could be challenged in the supreme court to test whether it should be implicated in this use asserted in this case but once the president does that, invokes that, it indicates the executive branch is directly involved. the white house is somehow directly involved. it doesn't usually cover cabinet members in different agencies or different departments. and that's really the point of what senator chuck grassly's statement about this today said earlier on. he is the ranking member

much the senate judiciary committee. he is the man who is on the senate side investigating "fast and furious" and he said this. the assertion of executive privilege raises monumental questions. how can the president assert executive privilege if there was no white house involvement? how can the president exert executive privilege over documents he supposedly has never seen? this is very big, something very big being hidden to go to this extreme? and those are the questions i think that are going to be being asked up on capitol hill when you talk about this constitutional battle overusing executive privilege. the attorney general and the doj has gone to great lengths to insulate it seems the white house. saying there was a just a couple of conversation about the president talking about testimony and they have said that there was really no major white house involvement at all. however as william has pointed out, and i should point out william la jeunesse has done a great job covering the story from the beginning, there have now been two major

retractions by the doj, one of them today and that big letter that had to be retracted back it february. this is a complicated story but one we've been following very closely for a long time. jenna: we certainly have, bret. at the center of this we don't want to forget there is a family that lost their son, brian terry. that family is still looking for answers why their son died. one of our viewers had a great question, like to ask you this. they said if this is really about the death of one of our citizens, if that is at the center of this story, then why is it so divided amongst partisan lines? >> i think that is a great question. as you look at these pictures of a federal agent, brian terry, border patrol officer, working for the u.s., you, that often gets overlooked in this back and forth about the politics. i heard all of the back and forth about how this could hurt republicans and how they're walking on the line and, you know, obviously how it hurts the administration but the bottom line a u.s.

federal agent was killed here in a program that went horribly wrong and congress is trying to get to the bottom of it. if you don't think people in arizona are paying close attention to this case, if you don't think that that swing state, the democrats have talked about as being possibly within their grasp, are paying attention to what is happening on capitol hill, and if you don't think the family of brian terry is interested in executive privilege being used to hold back documents dealing with "fast and furious", i think you're mistaken and the politics, it will be interesting to see how it plays out but the bottom line we should remember someone was killed in this case. jenna: absolutely. and our great team here at "happening now", brett, heard from brian terry's mother. she would love to be able to say something about this but is unable to. she referred us to her attorney. this is a big case for the family as well. it is a good reminder today as we cover the news the loss of the young man on the screen.

bret, more coverage on "special report". thank you. >> sure, jenna, the overarching question here this use of executive privilege, is it constitutional? bruce fine is former associate attorney general. he served under president ronald reagan. bruce, great to see you. it has been a while. >> thank you. gregg: is the application here appropriate of executive privilege or not? >> no. when it comes to congressional oversight it is almost plenary. i can recall when i was working in the nixon administration that the house judiciary committee voted an article of impeachment against president nixon for invoking executive privilege for refusing to comply with a subpoena. the most recent occasion when the battle between congressional oversight and the white house was undertaken when president bush invoked privilege to protect karl rove and harriet miers, who are white house personnel, from testifying before the house judiciary committee on the firing of u.s. attorneys. the judiciary committee went to court to enforce a contempt citation and they ultimately prevailed in the u.s. district court before a

judge who was appointed by president bush, john bates, who was, what you would call a conservative. gregg: right. >> there is really a presumption in our constitution that congress entitled to virtually every scrap of paper to make our government transparent and that's basically what the law is. if this case went to court i'm quite confident the president and mr. holder would lose. gregg: what we're hearing from the white house, bruce, is, well, there were some discussions among top aides at the white house about how to handle the "fast and furious" political fallout. that is some completely unrelated apparently to the documents being sought over at the department of justice. doesn't there have to be a nexus between the two in order to invoke executive privilege? >> i'm not sure the privilege itself automatically requires that the president be involved or that the white house be involved but certainly the strength of the privilege weakenses more remote it comes from the white house here. and you also have this odd situation where the department of justice has

already turned over thousands of documents related to the deliberative process within the department and it seems a little unseemly for them to say oh, we'll with hold the ones we don't want you to see. that enables the department to manipulate the what congress knows and what people know by disclosing what they think is helpful and with holding what they think is incriminating that is something simply not tolerated in the law. if you have a privilege and start to disclose information, even the privilege against self-incrimination you waive any right to with hold anything else to manufacture a false scenery. gregg: bruce fine, former associate deputy attorney general. bruce, great to see you. thanks very much. >> thank you. jenna: we're still dipping into the committee hearing taking place, believe it or not they're still in opening remarks officially. gregg: really? jenna: that's why we're seeing different lawmakers get a microphone and get a chance to speak. we understand they will take a break in a short while before they plan to take the vote, the vote to hold the

attorney general in contempt of congress. just within the committee but a significant vote at that. we're actually going to take a quick break right now. we'll be back with more coverage on "happening now." the medicare debate continues in washington...

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we'll take the 5-hour energy. smart move. 5-hour energy. hours and hours of energy. gregg: lots of vitriol occurring in the oversight committee. let's take a listen to congressman trey gowdy for a moment. >> in lieu of providing the documents. either congress has the authority to send a subpoena and require full compliance, or what we have been doing for the past 12 months is a fool's errand and we never should have discussed contempt of congress. either we have the right to the documents and we should get all of them, or we have no business here. and with respect to executive privilege, mr. chairman, i'm going to resist the temptation to contrast senator obama's position on executive privilege with president obama's --. gregg: just a sampling of the statements being made by the members of this committee. remember there are 22 republicans on the oversight

committee, 16 democrats. they will soon, we are led to believe vote on whether to refer a contempt citation of the attorney general to the full floor of the house of representatives. joining us now to talk about it, alan colmes, host of the "alan colmes radio show". rich lowery, a fox news contributor. you know, rich -- >> we promise you just as much vitriol. >> make it rockets if you please. gregg: vitriol is underrated. heretofore it was a battle between congress and the attorney general. now it's been elevated to the president. what are the political implications of this? >> it doesn't make sense to me why they would want to blow this up like this because all the body language prior to this, and statements was holder was going to meet with the committee and they would work it out which is usually what happens in these cases. so my guess, just speculative, is perhaps they can use this whole kerfuffle and vitriol and raucousness

and all rest to further their argument, wow, look how horrible this congress is. look at all the unreasonable people we have to deal with. gosh, aren't they really mean to president obama. gregg: you know, tell my clients, if you have nothing to hide, don't hide it. and if everything is as innocent an explanation as eric holder keeps insisting to congress, why not just hand over the documents? >> depends what is in them. we don't know what is in them. why is this administration being treated differently than other administrations 24 times since reagan with documents like this and president done it fewer times than any other president up to this point in the presidency. sounds like a political witch-hunt. i think flip what rich said. perhaps it is the, you know, the conservatives who are looking to make an issue in an election year. look at timing of this. gregg: i'm not sure the white house explanation we're getting through our two correspondents we talked to today makes a lot of

sense relative to the request by congress. they're saying, well we did have discussions about how to politically handle the fallout of "fast and furious". that is unrelated to the documents being sought over at justice, rich. so why would i invoke a protection, a flat-out protection for that? >> it seems a pretty weak claim the strongest claim obviously is deliberations directly involving the president. this is at an agency level. any agency could really claim this sort of privilege over their deliberative process over anything at any time. so the committee will vote to hold them in contempt. i believe the house will vote to hold them in contempt. then it goes to a u.s. attorney and that will probably not go anywhere. gregg: in other words, it could be, sort of a subterfuge to delay this until after the election because you're going to litigate in courts? >> they have been behind the curve. in fairness, alan, you would admit this, "fast and furious" was a horrendous program. >> yeah. >> they have not gotten their stories straight from

the beginning about how it started and who approved it. they had this infamous letter in february 202011. this is big deal. this is what happened. then to backtrack and say whoops, we got it wrong. gregg: holder today made his third retraction. >> this is terrible program and gun-running which is horrible. did holder know this particular thing taking place. there is another question, program wide receiver prior to this during the previous administration, is there a double-standard here. why did that get no attention. gregg: that was a third react shun -- retraction today, the department of justice that holder's testimony was incorrect he claimed mukasey his predecessor knew and approved. >> hardly got any attention at the time. seems like in middle of an election year we're focusing on this look at partisan lines upon which this is being debated in the house. looks like a witch-hunt. >> wide receiver much smaller scale program, and two, they actually tried to track the guns.

>> right. >> the problem with this one, alan, they said okay, we'll let the bad actors buy the guns. we have no means to track them except for when they show up at crime scenes. >> holder? how far does it go? >> that is wonderful question. it would be nice if the administration would answer it and get all the documents necessary to answer the question. >> holder called eight times and provided tens of thousands -- >> retracting as well. >> who did know and what level it was approved. gregg: you can't hand over purely exculpatory material. you have to hand over relevant material. >> we haven't seen it. gregg: we'll wait and see. alan colmes, rich lowery. >> vitriol lick enough? >> we'll take it outside. jenna: a lot to debate as we get back to the committee meeting at capitol hill. we're awaiting a vote that would hold eric holder in contempt of congress

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jenna: this just in. congressman patrick mahan, member of house government oversight and reform committee. he has been in the hearings you've seen on the screen. he just stepped out for us to ask him a few questions. congressman, we're covering these hearings today, with the expectation there will be a vote to hold eric holder in contempt of congress. then we got the news of executive privilege being used here by the doj to prevent certain documents from being shared with congress. do you still expect a vote to happen today to hold eric holder in contempt of congress? >> yeah. i don't know if that's certain. obviously the suggestion right now that there's a request for some sort of executive privilege as was stated by chairman issa, the last that i knew there was still no formal notification

from the attorney general that it was being invoked. only information that they would. we have had opening statements from each of the members which is effectively rehashing a lot of where we've been before and the real question now is whether we will proceed to a vote in light of, in light of that, assertion by the, by the administration. jenna: let's talk a little bit about the way forward. we're seeing congressman ross on the screen. we san see the tone of the hearing has been contentious. probably a little bit of an understatement, congressman. one of your colleagues, could congressman connelly called what is happening is a kangaroo court. he said basically this is just all show. your response, sir? >> there is nothing kangaroo about the fact that a border agent lost his life. we know there were violations of atf policies in the gun-walking. we know this was sanctioned at highest levels of the atf. ultimately when the whistle was blown, when they were

asked a question about gun-walking those whistle-blowers have been further intimidated by people within the justice department. the justice department changed their answer weather request to that specific question. and real answer that we're asking right now is, if you changed your answer, we know this occurred, why did it occur and, who knew about it? and there's a great deal, still left there. but there's nothing kangaroo about the death of an agent in the desert as a result of this operation. jenna: congressman meehan, thank you for stepping out. we know you have to get back into the hearing. thank you very much. as we continue to monitor the news here on capitol hill. we'll be right back with more coverage on "happening now" ♪

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jenna: interesting comment from the congressman, when asked will will we see a vote to eric

holdehold eric holder in contempt of congress. he says it's not certain at this time. the department of justice hasn't had an official notification of the committee. gregg: even if he's held in contempt. it gets referred to the department of justice. how can the u.s. attorney prosecute himself. you have a huge problem here and it will be unfolding as we cover it right here for the rest of the day on the fox news channel. jenna: thanks for joining us, gregg. gregg: it's been an interesting day. jenna: "america live" starts right now. >> reporter: we begin with a fox news alert for the first time since news broke that the white house is putting documents

linked to the botched gun-running operation under lock and key. we are now hearing from the family of murdered agent brian terry. i'm shannon bream in for megyn kelly. the department of justice gun running sting may have led dangerous guns slip into the hands of drug cartels. on the evening of december 14th 2010 u.s. border patrol agent brian terry and other -ts were controlling a canyon in arizona, eleven miles from the mexican border. the group came across five suspected illegal immigrants when they fired nonlethal beanbag guns. they responded with their own weapons leading to a firefight. agent terry was killed. his family has than desperately waiting for the truth to come out. when they heard that the president may have put the truth of what happened beyond the reach of congress b