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see for the most part here behind me i have to point out are here for new york city's iconic tree lighting ceremony. it takes place around this time every year. of course, and that is mainly what you are looking at. but cameraman can take a step forward and pan off to the left a little. you see some of the protesters there. that group that passed us just a few minutes ago numbered around 100. we have another live camera following a larger group. we are told by our producer with that group that that group numbers around 500. i should also point out that at this point, greta, this has been an entirely peaceful protest police would be here in large numbers anyway. they are out in greater number tonight because of these protests but they are keeping the protesters moving. they are not allowing them to stop for any length of time at all. they are preventing them crossing behind me here. sixth avenue as they walk up and taking them very much on a designated path across sixth avenue passed the iconic new york city christmas tree at rockefeller center and they appear to be looping them around at something like a half mile loop but they are not letting them stop. the protesters do not seem to be trying to disrupt anything think are chanting no justice, no peace as they walk. i should emphasize once again an entirely peaceful protests have everything we have seen so far tonight, greta. >> jonathan, we're looking at some pictures right now why seen some pushing admittedly it's hard to discern exactly what's going on are you seeing anything like that or am not correctly stating what we're seeing on the screen? >> without seeing exactly what you are looking at, it's hard for me to tell greta. i'm assume you are looking our other camera with a larger group just down sixth avenue from me here we understand was their last position it is a large group. but they are going through huge crowd of tourists and frankly as you walk with these tourists anyway and the elmo characters and other characters, can you see all around here. people do do a little pushing on shoving on this night opt tree lighting ceremony night anyway. so, hard to interpret it as anything other than a peaceful protest right now. and as i say that, there is a few more of the protesters coming up sixth avenue here with us now. but, as you can see, they are simply walking. they are chanting no justice, no peace. and they are just moving as the police have asked them to do to keep moving. not to stop in one place. not to cause any disruption of the tree lighting ceremony itself. and as i say, so far, greta, this has been from everything that i have seen, from our vantage point, an entirely peaceful protest. greta. >> jonathan, thank you. and just to emphasize once again because we are looking at the right side of our screen. see all these people and they are there for a celebration, the annual tree lighting. so it's hard to discern what, you know, what are the few pro-protests that jonathan is talking about. go live to fox news correspondent rick leventhal live on stanton island. rick? >> greta, staton island calm at this hour outside a grand jury's office late september found no reasonable cause to bling criminal charges against nypd officer daniel in the choke hold death of eric garner on july 17th that was captured, of course, on cell phone video. garner with 31 prior arrests was detained when police tried to handcuff the 6'3" 331-pound man he resisted. used a chokehold to get him down on the ground. the hold is not illegal but violates department policy. he complained he couldn't leave. despite the ruling that the death was a homicide caused by compression of the neck, compression of the chest and prone positioning during physical restraint by police. the jury of 23 found no true bill. no indictment. officer released a statement this afternoon after no indictment announcement was made saying it was never my intention to harm anyone. i feel very bad about the death plaintiff garner. my family and i include him and his family in our prayers and i hope they will accept my personal condolences for their loss. we should tell that you officer is suspended by the nypd. there is a possible internal investigation that will take place now. there is also a civil lawsuit being filed by garner's family, we're told for $75 million. and the u.s. justice department is now announced that it will in fact open an investigation into this case. the attorney general eric holder expected to hold a news conference at this hour. greta? >> rick, thank you. and, of course, we are going to continue to monitor these protests and joining us forensic pathologist michael baden who was hired to review the medical examiner's findings. he is here to tell us what he found. i'm having a hard time getting past the fact he says i can't breathe. tipoff that's a time to stop putting so much force on him. tell me, how easy was it to kill this man because it certainly looks over the top to me. >> you are absolutely right, greta. and the findings of the autopsy were that he died because he couldn't breathe. and he had said that he couldn't breathe as this was progressing. there was pressure, not only compressing the neck, that interferes with breathing and oxygen flow, compressing the chest. but also compressing the face and mouth and nose area. so, he died clearly of, as medical examiner's office said of instability to breathe. >> all right, so is it -- can you -- i'm trying to think why in the world the grand jury didn't indict. this is one of these instance where you actually get to watch it not the situation where the grand jury is reviewing evidence that you may not see. we got to see this vape. from the time he says i can't breathe the first time, i mean, how much longer before he, you know, he died? what's that span of time can you determine that? >> that can be determined by looking at that film. within a minute or so. >> that's a long time. a minute is is a long time. >> oh, yeah. first he would lose consciousness but still be alive and able to be resuscitated but after a minute or two, he would be -- there would be enough brain damage that he couldn't be resuscitated. >> all right. once he loses consciousness, is that -- i mean, at that point was he then going to die or was there still force likely applied to him that, i mean, was he likely to regain consciousness if more force hadn't been applied? >> as you say, once he loses consciousness, he is unconscious but he so that means they continue to do it. that means they continued to apply pressure even after he is unconscious. not even i can't breathe but now is he unconscious and they still keep doing this? >> that's right. that's correct one of the things that happens. individual police might not know he is unconscious because with the pulling and tugging he may be thought to be still resisting or still conscious. he isn't entirely still because other people are pulling and tugging other police are. but it was all the police. not just one police officer that would have caused the obstruction to breathing. >> all right. is -- and this is no way to o could you say asthmatic and obese and had heart disease, would that make him more fragile so for instance that force maybe applied to me wouldn't have killed me but is he more fragile man because of his condition and more likely to have died than for instance a healthy person? >> that's fair. his preexisting obesity and heart condition would have made him more at a risk from dying of asphyxia but he wouldn't have died of asphyxia hadn't been placed on him. >> does it take a lot to do a chokehold on someone to asphyxiate someone? could i have done it? i'm 5'3", do i have another pawf to do that or does it take a lot of force. >> it takes a lot of force. because it's force on the neck itself that precludes the blood vessels going to the brain as well as the wind pipe. there is also pressure on the chest. that takes a lot of force to press the chest so that the diaphragm doesn't work and the lungs don't expand is what chess pressure does. then there was visible on the film, on the video, pressure on the face, the nose and the mouth which also occludes breathing. so all together he died because he couldn't breathe. he might have died, you know, a little bit earlier than somebody who was in better health condition. but he would not have died if that pressure hadn't been put on him. >> dr. baden, thank you, sir. >> thank you, greta. >> and eric garner's arrest and death as noted captured on video. can you hear garner saying "i can't breathe" as police subdued him. >> i don't [bleep] [bleep] i can't breathe. i can't breathe. i can't breathe. everybody now back up. former prosecutor defense lawyer ted williams. ted, this was not a guy accused of armed robbery. this is not one police officer coming upon him. he wasn't armed they got all these police officers. they didn't intend to kill him but how does this happen? >> let's just be candid here. lady justice is crying tonight. this should not have happened. this wasn't some horrific crime. >> selling cigarettes. >> allegedly illegally selling cigarettes. >> he got the death penalty for selling cigarettes. >> i agree with you. you have got these individuals with a chokehold that's illegal within the police department. you have got them on his back. you can see one police officer with his knee in his back and this poor man is saying "i can't breathe. i can't breathe." and nobody gave a damn. it's sad that a grand jury in this case could not indict. i mean, all you need to do is look at the video. >> you know, look, i don't think katy these police officers in any way intended when they set out that day to kill this man. i don't think that at all. this conduct is just so other the top. how is it that we see something different from the grand jury? i respect grand jurors so much. i respect always their decisions in this case i figure either they saw something we didn't see or the prosecutor presented in some way, how does this happen? this is 23 individuals that heard the evidence, saw the evidence and came to the decision that no true bill was going to be returned against officer pantleo. particularly compelling. unlike the michael brown situation we have something to rely upon as to the actual interaction between law enforcement and the deceased individual. >> let me ask you this, katie, if i'm in the grocery store on saturday morning and i accidently back over you and kill you, i'm not going to get charged with murder but i could get manslaughter is it possible that the prosecutor didn't give the grand jury even a choice of something lesser? we don't know what was presented to the grand jury. homicide available? manslaughter available? yes. >> are prosecutors required to ask the grand jury that or not? can they just say intentional murder yes, no? can they do that? >> prosecutors can present the variety of offenses but, remember, no matter what they present to the grand jury, as you are aware as an attorney, you have to be able to meet the elements of the offense for the jury to be able to come back on that that applies to criminal grand jury. >> a prosecutor can indict a ham sandwich if they wanted. the threshold for behinding a true bill in a case like this is just a low threshold. probable cause. look, we -- we can debate michael brown. but we have a video here. and that video speaks for what happened in this case. >> to be on the video, the audio. i can't breathe which is so horrifying. anyway, katy and ted, we have got to go. thank you both for joining us. we are going to continue to monitor the protest of the grand jury's decision and bring you any breaking news as it happens. more life pictures as the protests continue and also check back with fox news jonathan hunt. right now the meeting at the white house that we all would have loved to have been the fly on the wall at. mitch mcconnell wrapping up a white house meeting with president obama. and just yesterday leader mcconnell saying is he perplexed by the president's actions since the midterm elections. >> i have been perplexed by the reaction since the election as sort of in your face dramatic move to the left. >> he has refused to listen. >> there are going to be some areas where we just don't agree. >> there is indeed philosophical difference. >> the president has ignored the will of the american people. the midterm elections did not turn out exactly as i had hoped. >> by any objective standard the president got crushed in this election. >> and joining us our political panel abc political director rick klein the national journal's josh and john mccormick, rick, how much would you have liked to have been the fly on the road at that mcconnell obama meeting? >> maybe they should have had bourbon maybe it would have helped things. michigan mcconnell is on to something about the president's tone. not left, right but the president leaning forward in the face of a pretty bad defeat a month ago. yes, is he a liberal and obviously pushing things to the left and his policies as you would expect. mostly it's the aggressiveness of his actions in standing up against the tax bill and moving forward on immigration despite the election results. the signal from him has been they are going to need something stronger than bourbon to get something done. >> interesting he just got a she lacking the democratic party did. you would think the president would want to negotiate. instead he does this move where he does executive action which enraged the republicans. like after he won the election inauguration in 2008 he said to republicans i won. he has this attitude instead of reaching across the aisle he pokes him in the eye. >> the president is underestimating the incentive for senate majority leader mcconnell to deal. because, you know, the senate caucus, the senate republican caucus is not as conservative as the house caucus. you have a lot more pragmatists. even the conservatives want to cut a dealed of and not as many ted cruzs as the white house likes to think. the fact that he went so early on pushing the executive order on immigration. that was a sign that the white house doesn't think that there are dealmakers in this conference. i think there are actually more that tises than the white house. >> man of the left no one should be perplexed going to govern as far left as possible. >> more effective about it. >> he is not thinking about it he has to worry about whether or not is he going to put the democratic party in such a bad position that they are going to lose in 2016. his entire agenda wiped out. obamacare revealed. put the democratic party in a position they can win if he he cares about keeping these policies for the long term arched not have them be pure rick victories. >> rick, is the president helping the democratic party or is he putting them in jeopardy. >> he is he relying on a different electorate than showed up a few weeks ago. we will see electorate who elected him twice. that may not be the truest nature to. your question you ask a bunch of moderate senate democrats whether they like what the president's actions are or not. you are seeing more splits on that side in this direction and a feeling that the president has taken them in. >> hadn't done healthcare in the beginning. >> democratic party. the leaders of the democratic party in congress recognize the party's obama moving the party too far to the left and acknowledgment by schumer there was a political misstep to pass obamacare infuriated the base. you are likely to see more divisions within the democratic party similar to the lines you saw in the g.o.p. over the last couple of years. >> what does this do to the g.o.p. then as they listen to this. >> pass. everyone talks about tax reform. three big problems with that first of all no one can agree on what the loop monthlies -- holes are. you know, they just can't figure that out. i don't see really much room for compromise at all there. >> any compromise? >> there is potential for some big areas. very few. i think tax reform may be one of them if they get past first disagreement. i'm not overly optimistic. smaller window talking about 2016 pretty quickly and the president himself won't be the most prominent democrat. >> my standard for tax reform is very slight. i think the tax code should be such that we can all do our taxes ourself not one member of congress can do it themselves because they have made it to complicated. thank you. >> thanks, greta. >> senate g.o.p. leaders soon to be senate majority leader mitch mcconnell goes "on the record." later mcconnell talks with us in first tv interview since republicans won control of the u.s. senate. that's tomorrow night 7:00 p.m. eastern right here "on the record" do. not miss that straight ahead. 17 states. just a short time ago, 17 states filed suit against president obama. texas is leading the challenge. claiming president obama's immigration executive action went over the constitutional line. leading the charge, texas governor elect greg abbot and is he here next. of course, monitoring the breaking news protests on the streets of new york in response to today's grand jury decision not to indict a police officer in the chokehold death of a citizen. and you are looking life at the protests in manhattan; we will bring you live updates throughout the hour and that's coming up. here's some news you may find surprising. we're for an open internet for all. we're for creating more innovation and competition. we're for net neutrality protection. now, here's some news you may find even more surprising. we're comcast. the only isp legally bound by full net neutrality rules. legal charge against president obama's executive action on immigration and today texas governor elect greg abbot on behalf of 17 states filing a lawsuit, challenging the president's executive order and governor elect abbot joins us. good evening, sir. i have a copy of your rather thickly filed or thick complaint. 17 states. what are you complaining about? what do you want? ened i say complaint because it's called a complaint. >> well, greta, this is these are states that range from the canadian border to the border with mexico. we all agree on one thing. that is that we have a broken immigration system in the united states of america and the wrong way to fix that broken immigration system is through executive fiat by the united states president. the constitution sets out the way that issues like immigration are to be addressed. and that resides with the united states congress. and what barack obama did in his executive order was to take the place of the united states congress and create legislation himself and then try to impose that legislation on the united states. all states join together and rejecting this overreach by president obama. i take it all the states that have joined have republican governors or do you have any democrats in this. >> i visited with you about the possibility of me filing this lawsuit. and since that time, we were able to talk to 16 states. and get them to join. i anticipate seeing more states join with this. if you recall our lawsuit challenging obamacare, we begin with 13 states and wound you wowntd up with 26 or 27. once people realize this is an issue not really focusing on immigration but instead is an issue about how the president is violating the constitution by imposing his own powers that really reside with congress. that's an issue that all states can join n supporting. >> where is arizona? i'm surprised arizona isn't on this. i'm not surprised so much california. it's a democratic pretty much a democratic state. where is arizona? >> only because of the shortness of time, greta. we needed to address this issue as quickly as possible. we are seeking emergency relief and so there was no time for delay. i would not be surprised if arizona and some other states were able to join in on the lawsuit. >> with all due respect they can read this quickly like i did and decide whether to join it it's southern district of texas, right? >> greta, it is filed in brownsville, texas. that was the epicenter of where we were having people come in and these children and mothers coming in, a thousand people a day across the rio grande river. so being that that is the epicenter of where this happened in the country, we thought that would be the aappropriate place to file this lawsuit. >> all right. i guess time is of the essence. faster than a routine lawsuit. the one with the federal government would have to respond to this. >> we expect the federal government have to respond in about two weeks with the court setting an aggressive timetable and there are several reasons for that for one. -million-dollar appropriation to deal with the consequences of the action. the second we will ask a court to rule before the effectiveness of the order by the agencies that are fulfilling what we consider to be barack obama's illegal executive order. >> fascinating to find out what happens. i hope you come back when the government responds and, of course i expect that you get a decision rather forthwith after they respond. governor, thank you, sir. >> thank you, greta. >> in a rare interview bashir assad mocking the u.s. fight against isis. you will hear what he he said and then senator kelly ayotte goes "on the record." that's next. we are following the breaking news. protesters taking to the streets of new york city this after a grand jury declines to indict a police officer in the chokehold death of a citizen. live updates coming up. you don't need to think that makes our lives possible. because we do. we're exxonmobil... and powering the world responsibly is our job. because boiling an egg... isn't as simple as just boiling an egg. life takes energy. energy lives here. ♪ ah, ♪ h it. ♪ push it. ♪ p...push it real good! ♪ ♪ ow! ♪ oooh baby baby...baby baby. if you're salt-n-pepa, you tell people to push it. ♪ push it real good. it's what you do. ♪ ah. push it. if you want to save fifteen percent or more on car insurance, you switch to geico. it's what you do. ♪ ah. push it. i'm pushing. i'm pushing it real good! paragraph photograph this certainly won't surprise you but it will enrage you. a new irs scandal brewing and this time the treasury inspector general's office saying it has found thousands of documents, potentially showing the irs shared confidential taxpayer returns with the white house. but now the feds refusing to release those documents despite a judge's ruling that theist must turn over the documents and jim jordan joins us. good evening, sir. >> good to be with you, greta. >> what are these? do we know what these documents are. >> no, we don't. we could do know it's not the first time that the irs has given confidential taxpayer information to people they shouldn't. we know back in 2010 they gave 6103 section of the code that protects taxpayers from having their information released. we know in 2010 they gave it to the fbi. they have given it to the justice department. remember, i brought this before, greta. remember what we get. we get this kind of stuff. >> this is redacted page. this is what you get you ask for information on taxpayer. >> sometimes they don't. >> some more pages. there are a lot of them. >> he we have got thousands of these. so, when we -- we get some but when we ask for they use 6103 to delay and obstruct our investigation trying to get to the bottom of why taxpayers were targeted. they use that but my guess is my guess is what the white house got, probably not these kind of pages. i know what the justin department got weren't. this they got some -- they got 21.1 million pages of information back in 2010 lois lerner gave them to the fbi. >> what in the world documents could the white house ask for from the irs that would be legitimate? >> remember, this is about an investigation into? just in general. they call' and say i like congressman jim jordan's tax returns. they can't do that right? >> they certainly can't do that. there is no way they can do that. >> what are the documents that we at least think they don't even know that they have? >> we would like to see them not in a form like this. >> what does the irs collect but personal information again they use 6103 to hide and obstruct -- we can't share -- this is what we get so. that's the part that's so frustrating. here is the other thing. this just happened on top of the news that the emails that were lost were suddenly found. >> you are talking about lois lerner's? >> yes. this underscores i think two key things. one, when people say oh this investigation is old history. old -- we're done. no, new information keeps coming up. we have got to continue this investigation. >> but that's -- you know, that's where i actually put your feet to the fire. what takes so long to get this done? just demand this. you have oversight. you're congress. >> we have subpoenaed the irs for any documents they sent to anyone. why do we have to have a foia request from cause of action to figure out that been coordinating with the white house or may be coordinating with the white house? who knows? that's the frustrating. that is the frustrating part. and, when john j i have got an idea. major it a criminal offense for the tourist turny information over to the white house without giving notice to the taxpayer and to you that they are giving the information over. make it a criminal offense. >> we have a whole series of those kind of reforms that we want to do. just good government reforms that protect taxpayers and help us get to the bottom of this and get the information we need to do. >> make it a criminal offense for anyone in the white house or anyone in any administration to ask for those personal information without first notifying the person? >> i would like to remind people too. remember what this is all about. the irs systematically targeted people for exercising their most fundamental right to speak in political fashion against their government. >> the president called it a phony scandal. >> no corruption. not even a smidgen. and yet now potentially there is confidential tax information going from the irs to the white house? potentially? we don't know. we would like to see. there is that potential according to the article appear and according to the freedom of information request cause of action. that comes on top of john koskinen who knew that they lost lois lerner's emails in april. didn't tell congress until june of this year and now they found them. >> why did you wait two months to tell us? pnchts because we had to do our due diligence to make sure we couldn't recover them. and yet now they have mysteriously reappeared. john koskinen met with oversight staff monday of this week. 744 backup tapes. that contained this information. found that these emails, they didn't even -- the irs didn't even look at those backup tapes. they took someone's word they have been recycled. they didn't look. what kind of due diligence were you really doing to get to that information. >> congressman, never dull and always nice to see you, sir. >> thank you. >> let's go off-the-record for a minute. congress needs to provide real insight. not just lip service and clean up and clean house at the irs. and president obama, he better not get in the way nor try to throw off the dogs by calling any attempt to get any information about the irs a phony scandal. that's disgraceful. that's not the only thing that's disgraceful. how about that our politicians are letting good americans get terrorized by the irs every single day? unless, of course, and let me add very sarcastically you happen to be al sharpton in which case you get a pass when you reportedly owe a million dollars in unpaid taxes. yes. selective or preferential treatment is also distasteful but i digress. we have a new irs scandal what in the world would the irs want with 2500 pages tax documents from the snirs you know what's really pathetic, the obama administration is now scrambling to keep it secret by saying they can't disclose the documents due to privacy concerns. so let me get this straight. it isn't private if the white house wants the irs to hand over 2500 pages of personal tax documents and the irs does, but if we want to see if something dirty is going on with these documents at the white house, suddenly, there are privacy concerns. and they don't want to do it it give me a break. that's my off-the-record comment tonight. and straight ahead, the american teacher brutally murdered in the bathroom of abu dahbi mall. just released video of suspect. live in new york city, protesters outraged over grand jury's decision not to indict police officer in the chokehold death of a citizen. a live report on this developing news coming up. test test test test here's some news you may find surprising. we're for an open internet for all. we're for creating more innovation and competition. we're for net neutrality protection. now, here's some news you may find even more surprising. we're comcast. the only isp legally bound by full net neutrality rules. powerful pacific storm slamming heavy rain falling across the racing concerns of mud slides. orange county some residents have already evacuated their homes. so far no major damage. but in northern california, san francisco heavy rain flooding streets and creating a giant sinkhole. the sinkhole growing to 20 feet wide by 4 o0 feet deep and crews racing to stop it tonight, body of a college gymnast found dumbwaiter where she worked. winona state university senior found in the food elevator connected to the restaurant's kitchen. it's not known how the college gymnast ended up in there. they are still investigating. no current indication of foul play. and developing now kindergarten teacher brutally and mysteriously murdered in mall bathroom. releasing chilling surveillance video of the suspect dressed in full black vale. that suspect still on the loose. philip moore joins us live from abu dahbi. philip, what happened? >> well, the kindergarten teacher, 37-year-old woman has been stabbed to death in a mall. abu dahbi police have called it a heinous crime. they still haven't established yet the gender of the attacker and they haven't made an arrest. early hours of the morning here. we might know a little more in a few hours. it was particularly vicious attack. it shows an altercation, a bloody knife and a blood splattered floor. the u.s. embassy has confirmed the death and the woman is the mother of 11-year-old twins and the twins are in police custody while the ex-husband of the victim arrives from abroad. >> now, the killer is dressed in a black vale and black robe. but there is no indication whether it's a man or a woman. right? i mean that's still uncertain? >> that's correct. the place on that matter. they say they haven't established the gender yet. the killer was wearing the traditional black robe, the full faced vale, black gloves. this is common dress in the persian gulf reasoning. so, they are keeping their options open there. they certainly shocked the community because abu dahbi the capital of the united arab emirates doesn't have this sort of thing as a rule. >> we will follow this as we get more information about this american. coming up, we are new york city grand jury decision not to indict an officer in the chokehold death of a citizen. here's a question for you: when electricity is generated with natural gas instead of today's most used source, how much are co2 emissions reduced? up to 30%? 45%? 60%? the answer is... up to 60% less. and that's a big reason why the u.s. is a world leader in reducing co2 emissions. take the energy quiz -- round 2. energy lives here. test test test test test test ♪ just look at those two. happy. in love. and saving so much money on their car insurance by switching to geico... well, just look at this setting. do you have the ring? oh, helzberg diamonds. another beautiful setting. i'm not crying. i've just got a bit of sand in my eyes, that's all. geico. fifteen minutes could save you fifteen percent or more on car insurance. a fox news alert right now protesters taking to the industries of new york city after a grand jury decides not to indict a police officer in the chokehold death of a citizen. and just moments ago, attorney general eric holder announcing the justice department will investigate eric garner's death. go back out to fox news correspondent jonathan hunt live in midtown manhattan. jonathan? >> greta, for the last couple of hours, a group of several hundred protesters has been in effect circling new york's tree lighting ceremony. the annual tree lighting ceremony that draws thousands upon thousands of tourists. and the vast majority of the crowd still around us tonight. are tourists. as tommy zooms in here for the far corner. that is one of the groups of protesters that have been gathered there. they have been trying to get across sixth avenue here. they go across that and they get to rockefeller center. that is is where the tree lighting ceremony is taking place. the police have done a very effective job of preventing them getting right next to it. as i say they have been want thatting. they have been largely peaceful. their chant has been no justice, no tree. we did see at one point a small and i emphasize small brawl break out. that was just at the top of the hour when you were talking to us. protesters now moving towards times square. greta, back to you. >> jonathan, thank you. of course to the viewers. stay with fox news throughout the night for the latest on the breaking news. thanks for being with us. see you again tomorrow night right here at 7:00 p.m. iron. of course tomorrow night we have a big interview. we have the new senate majority leader mitch mcconnell doing his first television interview right here on the record. this is a rather historic time. this is a switch from the democrats to the republican control of the senate tomorrow night 7:00 p.m. eastern right here. good night from washington, d.c. tonight on "red eye." >> coming up on "red eye" how bad did gaffe me piven want to get to the parking lot before crasses let out? why some dads are probably sleeping a little easier tonight. plus, what did the president think of the first teaser trailer? >> it was impressive. the lasers were really cool. and finally, hot models. could they hold the key to unlocking the mystery of stonehenge? and how will we ever know if we don't ask them. it is the question every other show refuses to tackle. none of these stories on "red eye" tonight. >> oh dear. now let's welcome our guests. she is as lit as the rom fell leer tree -- as
MexicoNew-yorkUnited-statesArizonaCanadaRockefeller-centerTexasCaliforniaUnited-arab-emiratesWashingtonDistrict-of-columbiaAmericans see for the most part here behind me i have to point out are here for new york city's iconic tree lighting ceremony. it takes place around this time every year. of course, and that is mainly what you are looking at. but cameraman can take a step forward and pan off to the left a little. you see some of the protesters there. that group that passed us just a few minutes ago numbered around 100. we have another live camera following a larger group. we are told by our producer with that group that that group numbers around 500. i should also point out that at this point, greta, this has been an entirely peaceful protest police would be here in large numbers anyway. they are out in greater number tonight because of these protests but they are keeping the protesters moving. they are not allowing them to stop for any length of time at all. they are preventing them crossing behind me here. sixth avenue as they walk up and taking them very much on a designated path across sixth avenue passed the iconic new york city christmas tree at rockefeller center and they appear to be looping them around at something like a half mile loop but they are not letting them stop. the protesters do not seem to be trying to disrupt anything think are chanting no justice, no peace as they walk. i should emphasize once again an entirely peaceful protests have everything we have seen so far tonight, greta. >> jonathan, we're looking at some pictures right now why seen some pushing admittedly it's hard to discern exactly what's going on are you seeing anything like that or am not correctly stating what we're seeing on the screen? >> without seeing exactly what you are looking at, it's hard for me to tell greta. i'm assume you are looking our other camera with a larger group just down sixth avenue from me here we understand was their last position it is a large group. but they are going through huge crowd of tourists and frankly as you walk with these tourists anyway and the elmo characters and other characters, can you see all around here. people do do a little pushing on shoving on this night opt tree lighting ceremony night anyway. so, hard to interpret it as anything other than a peaceful protest right now. and as i say that, there is a few more of the protesters coming up sixth avenue here with us now. but, as you can see, they are simply walking. they are chanting no justice, no peace. and they are just moving as the police have asked them to do to keep moving. not to stop in one place. not to cause any disruption of the tree lighting ceremony itself. and as i say, so far, greta, this has been from everything that i have seen, from our vantage point, an entirely peaceful protest. greta. >> jonathan, thank you. and just to emphasize once again because we are looking at the right side of our screen. see all these people and they are there for a celebration, the annual tree lighting. so it's hard to discern what, you know, what are the few pro-protests that jonathan is talking about. go live to fox news correspondent rick leventhal live on stanton island. rick? >> greta, staton island calm at this hour outside a grand jury's office late september found no reasonable cause to bling criminal charges against nypd officer daniel in the choke hold death of eric garner on july 17th that was captured, of course, on cell phone video. garner with 31 prior arrests was detained when police tried to handcuff the 6'3" 331-pound man he resisted. used a chokehold to get him down on the ground. the hold is not illegal but violates department policy. he complained he couldn't leave. despite the ruling that the death was a homicide caused by compression of the neck, compression of the chest and prone positioning during physical restraint by police. the jury of 23 found no true bill. no indictment. officer released a statement this afternoon after no indictment announcement was made saying it was never my intention to harm anyone. i feel very bad about the death plaintiff garner. my family and i include him and his family in our prayers and i hope they will accept my personal condolences for their loss. we should tell that you officer is suspended by the nypd. there is a possible internal investigation that will take place now. there is also a civil lawsuit being filed by garner's family, we're told for $75 million. and the u.s. justice department is now announced that it will in fact open an investigation into this case. the attorney general eric holder expected to hold a news conference at this hour. greta? >> rick, thank you. and, of course, we are going to continue to monitor these protests and joining us forensic pathologist michael baden who was hired to review the medical examiner's findings. he is here to tell us what he found. i'm having a hard time getting past the fact he says i can't breathe. tipoff that's a time to stop putting so much force on him. tell me, how easy was it to kill this man because it certainly looks over the top to me. >> you are absolutely right, greta. and the findings of the autopsy were that he died because he couldn't breathe. and he had said that he couldn't breathe as this was progressing. there was pressure, not only compressing the neck, that interferes with breathing and oxygen flow, compressing the chest. but also compressing the face and mouth and nose area. so, he died clearly of, as medical examiner's office said of instability to breathe. >> all right, so is it -- can you -- i'm trying to think why in the world the grand jury didn't indict. this is one of these instance where you actually get to watch it not the situation where the grand jury is reviewing evidence that you may not see. we got to see this vape. from the time he says i can't breathe the first time, i mean, how much longer before he, you know, he died? what's that span of time can you determine that? >> that can be determined by looking at that film. within a minute or so. >> that's a long time. a minute is is a long time. >> oh, yeah. first he would lose consciousness but still be alive and able to be resuscitated but after a minute or two, he would be -- there would be enough brain damage that he couldn't be resuscitated. >> all right. once he loses consciousness, is that -- i mean, at that point was he then going to die or was there still force likely applied to him that, i mean, was he likely to regain consciousness if more force hadn't been applied? >> as you say, once he loses consciousness, he is unconscious but he so that means they continue to do it. that means they continued to apply pressure even after he is unconscious. not even i can't breathe but now is he unconscious and they still keep doing this? >> that's right. that's correct one of the things that happens. individual police might not know he is unconscious because with the pulling and tugging he may be thought to be still resisting or still conscious. he isn't entirely still because other people are pulling and tugging other police are. but it was all the police. not just one police officer that would have caused the obstruction to breathing. >> all right. is -- and this is no way to o could you say asthmatic and obese and had heart disease, would that make him more fragile so for instance that force maybe applied to me wouldn't have killed me but is he more fragile man because of his condition and more likely to have died than for instance a healthy person? >> that's fair. his preexisting obesity and heart condition would have made him more at a risk from dying of asphyxia but he wouldn't have died of asphyxia hadn't been placed on him. >> does it take a lot to do a chokehold on someone to asphyxiate someone? could i have done it? i'm 5'3", do i have another pawf to do that or does it take a lot of force. >> it takes a lot of force. because it's force on the neck itself that precludes the blood vessels going to the brain as well as the wind pipe. there is also pressure on the chest. that takes a lot of force to press the chest so that the diaphragm doesn't work and the lungs don't expand is what chess pressure does. then there was visible on the film, on the video, pressure on the face, the nose and the mouth which also occludes breathing. so all together he died because he couldn't breathe. he might have died, you know, a little bit earlier than somebody who was in better health condition. but he would not have died if that pressure hadn't been put on him. >> dr. baden, thank you, sir. >> thank you, greta. >> and eric garner's arrest and death as noted captured on video. can you hear garner saying "i can't breathe" as police subdued him. >> i don't [bleep] [bleep] i can't breathe. i can't breathe. i can't breathe. everybody now back up. former prosecutor defense lawyer ted williams. ted, this was not a guy accused of armed robbery. this is not one police officer coming upon him. he wasn't armed they got all these police officers. they didn't intend to kill him but how does this happen? >> let's just be candid here. lady justice is crying tonight. this should not have happened. this wasn't some horrific crime. >> selling cigarettes. >> allegedly illegally selling cigarettes. >> he got the death penalty for selling cigarettes. >> i agree with you. you have got these individuals with a chokehold that's illegal within the police department. you have got them on his back. you can see one police officer with his knee in his back and this poor man is saying "i can't breathe. i can't breathe." and nobody gave a damn. it's sad that a grand jury in this case could not indict. i mean, all you need to do is look at the video. >> you know, look, i don't think katy these police officers in any way intended when they set out that day to kill this man. i don't think that at all. this conduct is just so other the top. how is it that we see something different from the grand jury? i respect grand jurors so much. i respect always their decisions in this case i figure either they saw something we didn't see or the prosecutor presented in some way, how does this happen? this is 23 individuals that heard the evidence, saw the evidence and came to the decision that no true bill was going to be returned against officer pantleo. particularly compelling. unlike the michael brown situation we have something to rely upon as to the actual interaction between law enforcement and the deceased individual. >> let me ask you this, katie, if i'm in the grocery store on saturday morning and i accidently back over you and kill you, i'm not going to get charged with murder but i could get manslaughter is it possible that the prosecutor didn't give the grand jury even a choice of something lesser? we don't know what was presented to the grand jury. homicide available? manslaughter available? yes. >> are prosecutors required to ask jury that or not? can they just say intentional murder yes, no? can they do that? >> prosecutors can present the variety of offenses but, remember, no matter what they present to the grand jury, as you are aware as an attorney, you have to be able to meet the elements of the offense for the jury to be able to come back on that that applies to criminal grand jury. >> a prosecutor can indict a ham sandwich if they wanted. the threshold for behinding a true bill in a case like this is just a low threshold. probable cause. look, we -- we can debate michael brown. but we have a video here. and that video speaks for what happened in this case. >> to be on the video, the audio. i can't breathe which is so horrifying. anyway, katy and ted, we have got to go. thank you both for joining us. we are going to continue to monitor the protest of the grand jury's decision and bring you any breaking news as it happens. more life pictures as the protests continue and also check back with fox news jonathan hunt. right now the meeting at the white house that we all would have loved to have been the fly on the wall at. mitch mcconnell wrapping up a white house meeting with president obama. and just yesterday leader mcconnell saying is he perplexed by the president's actions since the midterm elections. >> i have been perplexed by the reaction since the election as sort of in your face dramatic move to the left. >> he has refused to listen. >> there are going to be some areas where we just don't agree. >> there is indeed philosophical difference. >> the president has ignored the will of the american people. the midterm elections did not turn out exactly as i had hoped. >> by any objective standard the president got crushed in this election. >> and joining us our political panel abc political director rick klein the national journal's josh and john mccormick, rick, how much would you have liked to have been the fly on the road at that mcconnell obama meeting? >> maybe they should have had bourbon maybe it would have helped things. michigan mcconnell is on to something about the president's tone. not left, right but the president leaning forward in the face of a pretty bad defeat a month ago. yes, is he a liberal and obviously pushing things to the left and his policies as you would expect. mostly it's the aggressiveness of his actions in standing up against the tax bill and moving forward on immigration despite the election results. the signal from him has been they are going to need something stronger than bourbon to get something done. >> interesting he just got a she lacking the democratic party did. you would think the president would want to negotiate. instead he does this move where he does executive action which enraged the republicans. like after he won the election inauguration in 2008 he said to republicans i won. he has this attitude instead of reaching across the aisle he pokes him in the eye. >> the president is underestimating the incentive for senate majority leader mcconnell to deal. because, you know, the senate caucus, the senate republican caucus is not as conservative as the house caucus. you have a lot more pragmatists. even the conservatives want to cut a dealed of and not as many ted cruzs as the white house likes to think. the fact that he went so early on pushing the executive order on immigration. that was a sign that the white house doesn't think that there are dealmakers in this conference. i think there are actually more that tises than the white house. >> man of the left no one should be perplexed going to govern as far left as possible. >> more effective about it. >> he is not thinking about it he has to worry about whether or not is he going to put the democratic party in such a bad position that they are going to lose in 2016. his entire agenda wiped out. obamacare revealed. put the democratic party in a position they can win if he he cares about keeping these policies for the long term arched not have them be pure rick victories. >> rick, is the president helping the democratic party or is he putting them in jeopardy. >> he is he relying on a different electorate than showed up a few weeks ago. we will see electorate who elected him twice. that may not be the truest nature to. your question you ask a bunch of moderate senate democrats whether they like what the president's actions are or not. you are seeing more splits on that side in this direction and a feeling that the president has taken them in. >> hadn't done healthcare in the beginning. >> democratic party. the leaders of the democratic party in congress recognize the party's obama moving the party too far to the left and acknowledgment by schumer there was a political misstep to pass obamacare infuriated the base. you are likely to see more divisions within the democratic party similar to the lines you saw in the g.o.p. over the last couple of years. >> what does this do to the g.o.p. then as they listen to this. >> pass. everyone talks about tax reform. three big problems with that first of all no one can agree on what the loop monthlies -- holes are. you know, they just can't figure that out. i don't see really much room for compromise at all there. >> any compromise? >> there is potential for some big areas. very few. i think tax reform may be one of them if they get past first disagreement. i'm not overly optimistic. smaller window talking about 2016 pretty quickly and the president himself won't be the most prominent democrat. >> my standard for tax reform is very slight. i think the tax code should be such that we can all do our taxes ourself not one member of congress can do it themselves because they have made it to complicated. thank you. >> thanks, greta. >> senate g.o.p. leaders soon to be senate majority leader mitch mcconnell goes "on the record." later mcconnell talks with us in first tv interview since republicans won control of the u.s. senate. that's tomorrow night 7:00 p.m. eastern right here "on the record" do. not miss that straight ahead. 17 states. just a short time ago, 17 states filed suit against president obama. texas is leading the challenge. claiming president obama's immigration executive action went over the constitutional line. leading the charge, texas governor elect greg abbot and is he here next. of course, monitoring the breaking news protests on the streets of new york in response to today's grand jury decision not to indict a police officer in the chokehold death of a citizen. and you are looking life at the protests in manhattan; we will bring you live updates throughout the hour and that's coming up. e-golf, and the 45 highway mpg tdi clean diesel. and last but not least, the high performance gti. looks like we're gonna need a bigger podium. the volkswagen golf family. motor trend's 2015 "cars" of the year. legal charge against president obama's executive action on immigration and today texas governor elect greg abbot on behalf of 17 states filing a lawsuit, challenging the president's executive order and governor elect abbot joins us. good evening, sir. i have a copy of your rather thickly filed or thick complaint. 17 states. what are you complaining about? what do you want? ened i say complaint because it's called a complaint. >> well, greta, this is these are states that range from the canadian border to the border with mexico. we all agree on one thing. that is that we have a broken immigration system in the united states of america and the wrong way to fix that broken immigration system is through executive fiat by the united states president. the constitution sets out the way that issues like immigration are to be addressed. and that resides with the united states congress. and what barack obama did in his executive order was to take the place of the united states congress and create legislation himself and then try to impose that legislation on the united states. all states join together and rejecting this overreach by president obama. i take it all the states that have joined have republican governors or do you have any democrats in this. >> i visited with you about the possibility of me filing this lawsuit. and since that time, we were able to talk to 16 states. and get them to join. i anticipate seeing more states join with this. if you recall our lawsuit challenging obamacare, we begin with 13 states and wound you wowntd up with 26 or 27. once people realize this is an issue not really focusing on immigration but instead is an issue about how the president is violating the constitution by imposing his own powers that really reside with congress. that's an issue that all states can join n supporting. >> where is arizona? i'm surprised arizona isn't on this. i'm not surprised so much california. it's a democratic pretty much a democratic state. where is arizona? >> only because of the shortness of time, greta. we needed to address this issue as quickly as possible. we are seeking emergency relief and so there was no time for delay. i would not be surprised if arizona and some other states were able to join in on the lawsuit. >> with all due respect they can read this quickly like i did and decide whether to join it it's southern district of texas, right? >> greta, it is filed in brownsville, texas. that was the epicenter of where we were having people come in and these children and mothers coming in, a thousand people a day across the rio grande river. so being that that is the epicenter of where this happened in the country, we thought that would be the aappropriate place to file this lawsuit. >> all right. i guess time is of the essence. faster than a routine lawsuit. the one with the federal government would have to respond to this. >> we expect the federal government have to respond in about two weeks with the court setting an aggressive timetable and there are several reasons for that for one. -million-dollar appropriation to deal with the consequences of the action. the second we will ask a court to rule before the effectiveness of the order by the agencies that are fulfilling what we consider to be barack obama's illegal executive order. >> fascinating to find out what happens. i hope you come back when the government responds and, of course i expect that you get a decision rather forthwith after they respond. governor, thank you, sir. >> thank you, greta. >> in a rare interview bashir assad mocking the u.s. fight against isis. you will hear what he he said and then senator kelly ayotte goes "on the record." that's next. we are following the breaking news. protesters taking to the streets of new york city this after a grand jury declines to indict a police officer in the chokehold death of a citizen. live updates coming up. itis lik, and you're talking to your rheumatologist about a biologic... this is humira. this is humira helping to relieve my pain and protect my joints from further damage. this is humira giving me new perspective. doctors have been prescribing humira for ten years. humira works for many adults. it targets and helps to block a specific source of inflammation that contributes to ra symptoms. humira can lower your ability to fight infections, including tuberculosis. serious, sometimes fatal infections and cancers, including lymphoma, have happened, as have blood, liver, and nervous system problems, serious allergic reactions, and new or worsening heart failure. before treatment, get tested for tb. tell your doctor if you've been to areas where certain fungal infections are common, and if you've had tb, hepatitis b, are prone to infections, or have flu-like symptoms or sores. don't start humira if you have an infection. talk to your doctor and visit humira.com this is humira at work you don't need to think that makes our lives possible. because we do. we're exxonmobil... and powering the world responsibly is our job. because boiling an egg... isn't as simple as just boiling an egg. life takes energy. energy lives here. this is a a fox news alert. we are continuing to watch what is going on in the streets of new york. there are protests here lighting of the tree. protest over the grand jury declining to indict a police officer in the death of an unarmed man on the street in july. we will bring you the pictures and news when we get it. tonight, developing news in the fight against isis. syrian president bashar assad mocking the u.s. saying u.s. led air strikes against isis in his country are not serious or efficient. and assad says the strikes have produced no tangible results. and senator kelly ayotte joins us. good evening. >> good evening, greta. ake of the president of syria mocking us? >> you have to look at president assad mocking us. the irony of that. because as you know the obama administration has given him a pass here their theory is we will train this up moderate opposition and allow assad to slaughter them because we will not stop him from taking any strikes against him. you have to look at these comments in light of, really i think the strategy that john how it works there a and also the fact that he is getting a pass that said on the substance on the air strikes i think they have been somewhat tepid. >> two questions. let me go to the second one first. does this mean that the situation on the ground is getting worse or are we ton containing it? status quo or are things getting worse there? >> there have been some progress, except i think on the syria side there is not i believe -- the issue of this. who is going to fight them on the ground. and if you just give assad' the pass of these people that we're going to train off to kill them. who is going fight them. >> awkward, awful part you want to use about it is that if we are successful in syria, against isis, that means that we empower assad who how we got into this fuss originally was because he was gassing his civilians or using chemical weapons against them. where is this going disgusting war where we kill each other? >> i don't see how the administration doesn't have a strategy that i can see right now that is going to. >> no tragedy? >> i can't -- i was in a briefing a couple weeks oago on it i looked and thought there is no strategy here. especially dealing with the syria side of this piece. on iraq side do you have effective finding force in the kurds. we need to give them more support because they have asked for more heavy equipment and we haven't fully supported them. but they no doubt are doing work on the ground pushing isis back. they are not going to go beyond their area. >> on the syria side. there is a vacuum there. and assad is, i think, looking at the situation saying it is going to benefit him in the long one. >> no one discussing humanitarian crisis. all the refugees, fled to jordan and to iraq. they are homeless. they are cold, they are hungry. there is no education. there is no nothing. >> i believe have you been there. i have been to the refugee camps in jordan. it's horrible the situation there. and they continue to flow in. it puts a burden on countries like jordan. refugees no home and horrible situation. >> if you have ever seen a refugee camp you will never forget it. >> you will not forget it. >> senator, thank you. >> thanks, greta. >> now a $25,000 christmas party. sound like fun? well, you are not invited. but you paid for it according to a scathing new inspect general report federal little funded science group billed that christmas party along with other lavish expenses to the taxpayers, that means you. fox news correspondent doug mckelway joins us. so what happened? the national science foundation does a lot of work and studies. study of how bacteria effect the mobility of an important food source, shrimp into shrimp on a treadmill. that said, a new audit has found the national science foundation could be a lot more frugal with taxpayer money. the house committee on science today heard testimony that under an nsf contract the nonprofit observatory network spent money on $25,000 christmas party on a $10,000 or excuse me $1,000 a month premium coffee service. $150 million on questionable construction costs and $112,000 for lobbying. democrats on the house science committee objected to hearing complaining that no representatives from the health science foundation were there to defend themselves is. they maintain the audits of the inspector general and defense contract agency were flawed. premature and incomplete. republicans pushed back saying democrats were attacking the messenger in a statement to fox news. knee on's board chairman james collins said, quote. knee on incorporated has always spent all funding in strict compliance with understanding both of the guidelines provided to the organization and a the law. knee on's contract offering 62 on or observatories on continent. land use and invasive species studying it all while drinking expensive coffee. >> if everything is flawed they didn't get the chance to bring them, in let's question them. grill them and find out how they spent the money if appears all flawed. >> happening again, another irs scandal and this time lots of questions about just how cozy the white house and the irs are. disturbing new information that's next. of course, we got that protest monitoring midtown manhattan. protesters outraged the grand jury's decision not to indict a police officer in the chokehold death of a citizen. a live update coming up. o it in the past. i hadn't been successful. quitting smoking this time was different because i got a prescription for chantix. along with support, chantix (varenicline) is proven to help people quit smoking. the fact that it reduced the urge to smoke helped me get that confidence that i could do it. some people had changes in behavior, thinking or mood, hostility, agitation, depressed mood and suicidal thoughts or actions while taking or after stopping chantix. some people had seizures while taking chantix. if you notice any of these, stop chantix and call your doctor right away. tell your doctor about any history of mental health problems, which could get worse while taking chantix or history of seizures. don' take chantix if you've had a serious allergic or skin reaction to it. if you develop these, stop chantix and see your doctor right away as some can be life-threatening. tell your doctor if you have a history of heart or blood vessel problems, or develop new or worse symptoms. get medical help right away if you have symptoms of a heart attack or stroke. decrease alcohol use while taking chantix. use caution when driving or operating machinery. common side effects include nausea, trouble sleeping and unusual dreams. i love myself as a non-smoker. ask your doctor if chantix is right for you. paragraph photograph this certainly won't surprise you but it will enrage you. a new irs scandal brewing and this time the treasury inspector general's office saying it has found thousands of documents, potentially showing the irs shared confidential taxpayer returns with the white house. but now the feds refusing to release those documents despite a judge's ruling that theist must turn over the documents and jim jordan joins us. good evening, sir. >> good to be with you, greta. >> what are these? do we know what these documents are. >> no, we don't. we could do know it's not the first time that the irs has given confidential taxpayer information to people they shouldn't. we know back in 2010 they gave 6103 section of the code that protects taxpayers from having their information released. we know in 2010 they gave it to the fbi. they have given it to the justice department. remember, i brought this before, greta. remember what we get. we get this kind of stuff. >> this is redacted page. this is what you get you ask for information on taxpayer. >> sometimes they don't. >> some more pages. there are a lot of them. >> he we have got thousands of these. so, when we -- we get some but when we ask for they use 6103 to delay and obstruct our investigation trying to get to the bottom of why taxpayers were targeted. they use that but my guess is my guess is what the white house got, probably not these kind of pages. i know what the justin department got weren't. this they got some -- they got 21.1 million pages of information back in 2010 lois lerner gave them to the fbi. >> what in the world documents could the white house ask for from the irs that would be legitimate? >> remember, this is about an investigation into? just in general. they call' and say i like congressman jim jordan's tax returns. they can't do that right? >> they certainly can't do that. there is no way they can do that. >> what are the documents that we at least think they don't even know that they have? >> we would like to see them not in a form like this. >> what does the irs collect but personal information again they use 6103 to hide and obstruct -- we can't share -- this is what we get so. that's the part that's so frustrating. here is the other thing. this just happened on top of the news that the emails that were lost were suddenly found. >> you are talking about lois lerner's? >> yes. this underscores i think two key things. one, when people say oh this investigation is old history. old -- we're done. no, new information keeps coming up. we have got to continue this investigation. >> but that's -- you know, that's where i actually put your feet to the fire. what takes so long to get this done? just demand this. you have oversight. you're congress. >> we have subpoenaed the irs for any documents they sent to anyone. why do we have to have a foia request from cause of action to figure out that been coordinating with the white house or may be coordinating with the white house? who knows? that's the frustrating. that is the frustrating part. and, when john j i have got an idea. major it a criminal offense for the tourist turny information over to the white house without giving notice to the taxpayer and to you that they are giving the information over. make it a criminal offense. >> we have a whole series of those kind of reforms that we want to do. just good government reforms that protect taxpayers and help us get to the bottom of this and get the information we need to do. >> make it a criminal offense for anyone in the white house or anyone in any administration to ask for those personal information without first notifying the person? >> i would like to remind people too. remember what this is all about. the irs systematically targeted people for exercising their most fundamental right to speak in political fashion against their government. >> the president called it a phony scandal. >> no corruption. not even a smidgen. and yet now potentially there is confidential tax information going from the irs to the white house? potentially? we don't know. we would like to see. there is that potential according to the article appear and according to the freedom of information request cause of action. that comes on top of john koskinen who knew that they lost lois lerner's emails in april. didn't tell congress until june of this year and now they found them. >> why did you wait two months to tell us? pnchts because we had to do our due diligence to make sure we couldn't recover them. and yet now they have mysteriously reappeared. john koskinen met with oversight staff monday of this week. 744 backup tapes. that contained this information. found that these emails, they didn't even -- the irs didn't even look at those backup tapes. they took someone's word they have been recycled. they didn't look. what kind of due diligence were you really doing to get to that information. >> congressman, never dull and always nice to see you, sir. >> thank you. >> let's go off-the-record for a minute. congress needs to provide real insight. not just lip service and clean up and clean house at the irs. and president obama, he better not get in the way nor try to throw off the dogs by calling any attempt to get any information about the irs a phony scandal. that's disgraceful. that's not the only thing that's disgraceful. how about that our politicians are letting good americans get terrorized by the irs every single day? unless, of course, and let me add very sarcastically you happen to be al sharpton in which case you get a pass when you reportedly owe a million dollars in unpaid taxes. yes. selective or preferential treatment is also distasteful but i digress. we have a new irs scandal what in the world would the irs want with 2500 pages tax documents from the snirs you know what's really pathetic, the obama administration is now scrambling to keep it secret by saying they can't disclose the documents due to privacy concerns. so let me get this straight. it isn't private if the white house wants the irs to hand over 2500 pages of personal tax documents and the irs does, but if we want to see if something dirty is going on with these documents at the white house, suddenly, there are privacy concerns. and they don't want to do it it give me a break. that's my off-the-record comment tonight. and straight ahead, the american teacher brutally murdered in the bathroom of abu dahbi mall. just released video of suspect. live in new york city, protesters outraged over grand jury's decision not to indict police officer in the chokehold death of a citizen. a live report on this developing news coming up. ow, it money kind of a lot. -money's freedom. -money's always on my mind. credit cards. -mortgage. -debt. it's complicated. it's not easy. i'm not a good budgeter. unfortunately, i'm a spender. i would love to learn more about finances. so there's questions about the world that all of us have, especially about money and finance. the goal of khan academy and better money habits and the partnership we're doing with bank of america is to give people the tools they need to empower themselves. we're for an opens you internet for all.sing. we're for creating more innovation and competition. we're for net neutrality protection. now, here's some news you may find even more surprising. we're comcast. the only isp legally bound by full net neutrality rules. powerful pacific storm slamming heavy rain falling across the racing concerns of mud slides. orange county some residents have already evacuated their homes. so far no major damage. but in northern california, san francisco heavy rain flooding streets and creating a giant sinkhole. the sinkhole growing to 20 feet wide by 4 o0 feet deep and crews racing to stop it tonight, body of a college gymnast found dumbwaiter where she worked. winona state university senior found in the food elevator connected to the restaurant's kitchen. it's not known how the college gymnast ended up in there. they are still investigating. no current indication of foul play. and developing now kindergarten teacher brutally and mysteriously murdered in mall bathroom. releasing chilling surveillance video of the suspect dressed in full black vale. that suspect still on the loose. philip moore joins us live from abu dahbi. philip, what happened? >> well, the kindergarten teacher, 37-year-old woman has been stabbed to death in a mall. abu dahbi police have called it a heinous crime. they still haven't established yet the gender of the attacker and they haven't made an arrest. early hours of the morning here. we might know a little more in a few hours. it was particularly vicious attack. it shows an altercation, a bloody knife and a blood splattered floor. the u.s. embassy has confirmed the death and the woman is the mother of 11-year-old twins and the twins are in police custody while the ex-husband of the victim arrives from abroad. >> now, the killer is dressed in a black vale and black robe. but there is no indication whether it's a man or a woman. right? i mean that's still uncertain? >> that's correct. the place on that matter. they say they haven't established the gender yet. the killer was wearing the traditional black robe, the full faced vale, black gloves. this is common dress in the persian gulf reasoning. so, they are keeping their options open there. they certainly shocked the community because abu dahbi the capital of the united arab emirates doesn't have this sort of thing as a rule. >> we will follow this as we get more information about this american. coming up, we are new york city grand jury decision not to indict an officer in the chokehold death of a citizen. a live report is next. get an auto insurance quote and see why 92% of our members plan to stay for life. when electricity is generated here's awith natural gasu: instead of today's most used source, how much are co2 emissions reduced? up to 30%? 45%? 60%? the answer is... up to 60% less. and that's a big reason why the u.s. is a world leader in reducing co2 emissions. take the energy quiz -- round 2. energy lives here. and cialis for daily use helps you be ready anytime the moment is right. cialis is also the only daily ed tablet approved to treat symptoms of bph, like needing to go frequently. tell your doctor about all your medical conditions and medicines, and ask if your heart is healthy enough for sex. do not take cialis if you take nitrates for chest pain, as it may cause an unsafe drop in blood pressure. do not drink alcohol in excess. side effects may include headache, upset stomach, delayed backache or muscle ache. to avoid long term injury, get medical help right away for an erection lasting more than four hours. if you have any sudden decrease or loss in hearing or vision, or any allergic reactions like rash, hives, swelling of the lips, tongue or throat, or difficulty breathing or swallowing, stop taking cialis and get medical help right away. ask your doctor about cialis for daily use and a free 30-tablet trial. motor trend's 2015olft ciacar of the year.e so was the 100% electric e-golf, and the 45 highway mpg tdi clean diesel. and last but not least, the high performance gti. looks like we're gonna need a bigger podium. the volkswagen golf family. motor trend's 2015 "cars" of the year. a fox news alert right now protesters taking to the industries of new york city after a grand jury decides not to indict a police officer in the chokehold death of a citizen. and just moments ago, attorney general eric holder announcing the justice department will investigate eric garner's death. go back out to fox news correspondent jonathan hunt live in midtown manhattan. jonathan? >> greta, for the last couple of hours, a group of several hundred protesters has been in effect circling new york's tree lighting ceremony. the annual tree lighting ceremony that draws thousands upon thousands of tourists. and the vast majority of the crowd still around us tonight. are tourists. as tommy zooms in here for the far corner. that is one of the groups of protesters that have been gathered there. they have been trying to get across sixth avenue here. they go across that and they get to rockefeller center. that is is where the tree lighting ceremony is taking place. the police have done a very effective job of preventing them getting right next to it. as i say they have been want thatting. they have been largely peaceful. their chant has been no justice, no tree. we did see at one point a small and i emphasize small brawl break out. that was just at the top of the hour when you were talking to us. protesters now moving towards times square. greta, back to you. >> jonathan, thank you. of course to the viewers. stay with fox news throughout the night for the latest on the breaking news. thanks for being with us. see you again tomorrow night right here at 7:00 p.m. iron. of course tomorrow night we have a big interview. we have the new senate majority leader mitch mcconnell doing his first television interview right here on the record. this is a rather historic time. this is a switch from the democrats to the republican control of the senate tomorrow night 7:00 p.m. eastern right here. good night from washington, d.c. the o'reilly factor is on. tonight: >> put your hand behind your head. >> more racial controversy as the new york city grand jury declines to prosecute a police officer who killed an african-american using a chokehold we have a full report. >> the tragedy is personal to this family but become something personal to so many of us. >> the mayor of the nation's largest city now actively opposing his own police force. this could lead to chaos. we have the inside story. >> got to start wearing an i patch. >> people start calling me snake o'reilly. >> the best of dennis miller, the late fall edition. >> you i
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