Will Eric Holder survive 'Fast and Furious' fiasco?

Megyn Kelly on the Attorney General testifying before a congressional committee over ATF gunwalking scandal


This is a RUSH transcript from "The O'Reilly Factor," February 02, 2012. This copy may not be in its final form and may be updated.

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O'REILLY: Thanks for staying with us. I'm Bill O'Reilly.

In the "Kelly File" segment tonight, Attorney General Eric Holder once again called to testify in front of a congressional committee today over the Fast and Furious gun scandal. In addition, the family of Brian Terry, the Border Patrol agent who was shot dead with a gun, involved in a federal government sting, may file a $25 million wrongful death lawsuit against the feds. What a mess.

To sort it all out, Megyn Kelly. What happened today?

MEGYN KELLY, FOX NEWS ANCHOR: Eric Holder went before this House committee and was grilled once again about what he knew and when he knew it and where is the accountability for this Operation Fast and Furious.

This time, as in the five times prior, there has been no direct evidence linking him to the scandal, but they're trying to figure out who - - who approved this program, Bill.

O'REILLY: They still don't know who approved?

KELLY: No. He still doesn't. He still says, "Well, we're still investigating." Who approved it? Who's behind it? Who signed off on it? And these lawmakers are saying it's been 13 months just since Brian Terry's died. I mean, that's just since he died.

O'REILLY: Right.

KELLY: When the operation was uncovered. Why don't you know that already?

O'REILLY: Right. OK, so let's just recap. This is the fifth time they called Holder up.

KELLY: Sixth.

O'REILLY: Sixth time, and they want to embarrass Holder. That's why they're doing this.

KELLY: That's what he says. He says this is political.

O'REILLY: And it is. Let's be honest: it's a political thing, because they can't advance the story. It's the same story. They call him up. Holder says he doesn't know. Six times. He looks like a schmoe. Right?

KELLY: They are grilling him over the non-production of certain documents. They say they say -- they say that...

O'REILLY: Yes. Well, they've already issued a letter...

KELLY: Right.

O'REILLY: ... saying if you don't come up with them -- they don't have to pull him into that. They already sent him the letter. He's going to be contempt with Congress. Come up with this stuff. So it is political. And I'm not saying that in any other way than the truth. But Holder looks like he just doesn't know what he's going on in something that is vitally important.

KELLY: He says -- he says he's appointed the inspector -- to ask the inspector general of the DOJ -- that's the person who investigates things like this -- to investigate this, to get to the bottom.

O'REILLY: But it doesn't take 13 months.

KELLY: Apparently he thinks it does. And he -- Holder says today he does not believe the American people have lost faith with him, and that they know it's political and that this is basically a witch hunt.

O'REILLY: All right, but let me stop you there. OK. So that's Holder's position. They're trying to get me because I'm Democrat and I'm close to Barack Obama. But if the Perry family files a $25 million lawsuit against the Justice Department -- that's where it would be directed -- then Holder is going to be deposed.

KELLY: No, he's not.

O'REILLY: No? He's going to be able to shield him from a deposition?

KELLY: It's going to get thrown out of the papers (ph).

O'REILLY: Really?

KELLY: Yes. I think, as a matter of law, that claim will fail.


KELLY: Because first of all, the government has immunity in all but very limited cases.

O'REILLY: Just like judges, right?

KELLY: Yes. And doesn't look like one of the cases. Because we want to protect our public officials...

O'REILLY: Politicians. Right.

KELLY: ... from getting sued, because you and I pay for that.

O'REILLY: And they'd be sued every hour on the hour.

KELLY: Exactly right. All right, so that's No. 1.

And No. 2, wrongful death lawsuits are very hard to maintain. You basically to have to prove that this specific risk to this specific decedent, Brian Terry, was foreseen by the person you're suing.

O'REILLY: No, they couldn't.

KELLY: So they can't do it.


KELLY: Very hard to maintain.

O'REILLY: All right. So right now, it's a holding pattern. Holder continues to be embarrassed. Congressman Manning, you better give us these documents or you're in contempt.

KELLY: I don't know if he is embarrassed. Holder says, "Look, I'm A.G. I know it comes with the territory."

O'REILLY: He doesn't like this. Nobody could like this. This makes him look bad.

All right. In Oakland, and we just had this Occupy thing in Rhode Island. There was a big -- 400 people arrested. A lot of violence last weekend. Two of the protestors now are suing the city of Oakland. Roll the tape.


UNIDENTIFIED FEMALE: I was arrested Saturday evening. And I saw many instances of cruelty from what appeared to be robotic monster type people.

UNIDENTIFIED MALE: When you put people in uniform with shot guns and tear gas and flash grenades, and you're throwing it at innocent people that you know don't have the same weapons that you do, that's called military tactics.


O'REILLY: So they're suing the city of Oakland because of the confrontation that happened because the Occupiers were trying to sack city hall. They were trying...

KELLY: And the tape is terrible for the Occupy protestors, in part. I mean, it showing them burning the American flag. And I mean, literally, they broke into city hall, and they vandalized materials.

O'REILLY: Right.

KELLY: But there is also a tape that looks very bad for the police. So they will have to prove that they pursued this lawsuit, that the police used undue force and the police will defend it by saying it was reasonably necessary to keep the peace, to effect calm.

O'REILLY: You say this...

KELLY: But let me get to the more salient...

O'REILLY: All right. Go ahead.

KELLY: ... potential claim, which is they also claim that when they were jailed, when 400 people were arrested, taken out of jail, that they were denied their medications, that they were basically treated like cattle.

O'REILLY: Well, you would be treated, because there were 400 of you. That's not usually what happens on Saturday.

KELLY: But you had certain people who are alleging that they, for example, were denied their HIV medication...

O'REILLY: Of course, they were alleged.

KELLY: ... for over a day. One girl had her hands tied behind her back for nine hours.

O'REILLY: All right. And another guy, somebody dumped water on him, all that.

KELLY: Listen, even though they are mass arrests, people have a right to be treated by human beings.

O'REILLY: OK, but you can't give them the benefit of the doubt, the Occupiers. You have to give the police the benefit of the doubt. And you said there's some tape that makes the police look bad. I have not seen that. What tape is that?

KELLY: I'm just talking about the tear gas and was that a proportionate use of force?

O'REILLY: Well, if you want to -- if you want to attack the city buildings, you've got 1,000 people coming at the city building, trying to destroy it. What would you do?

KELLY: Look, I'm not -- I'm not taking a side on that one.

O'REILLY: I am. I'm taking a side.

KELLY: The piece of it that bothers me -- the piece of it that bothers me is if you really are arresting people, you have to have the facilities and you have to the personnel...

O'REILLY: They don't have the facilities in Oakland.

KELLY: ... to treat them like human beings. You can't have them with their hands -- young girls with their hands behind their back for nine hours...

O'REILLY: If that were the case...

KELLY: ... and they're denied their medications for HIV positive.

O'REILLY: If that -- if they can prove -- if they can prove that...

KELLY: Right.

O'REILLY: ... then I would be -- I'd listen. But I don't believe a word of it.

KELLY: Well, just because they allege it and you don't like them doesn't mean...

O'REILLY: I don't like them, and I don't think they're honest. So that's where I'm going to go down, on the side of the cops right now.

Megyn Kelly, everybody.

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