guns because u.s. authorities never bothered to tell mexican authorities about the scheme. they never had a way to actually track the guns. that is, not until people started dying. >> the only way you're going to find those guns in mexico is where? >> at crime scenes. at the death, at the site of somebody who's dead. at a gun battle between the police and the bad guys in which either the bad guy was killed and his gun was left at the scene or used during the commission of a crime in which the gun was left behind. >> that makes no sense to me. >> between reasonable men within the law enforcement community, no, there is no reasonable explanation to let these guns walk. >> two of those guns made their way back north to the scene where border agent brian terry was shot dead a year and a half ago. he just finished buying christmas presents for his family. two months later, atf agent sopada was shot by a batch of ten firearms sold in a part of fast and furious. but the big headlines today were in washington, d.c. after initially cooperating with the house oversight committee, which is investigating fast and furious. attorney general eric holder refused to turn over more internal justice department documents. in a letter today, the deputy attorney general james cole notified the committee chairman darrell issa that president obama was holding them on the basis of executive privilege. the move came after threats to site holder for contempt. and negotiations yesterday between the attorney general and committee members. today's decision to invoke executive privilege led republicans on the committee to say their search for accountability is being stymied. >> if congress has time to look into major league baseball, the bcs and invite stephen colbert to come to a committee hearing, surely to goodness, we have time to get answers only fundamentally flawed lethal investigation like fast and furious. >> well, democrats accused >> well, democrats accused chairman issa and his republican colleagues of conducting a witch hunt. republicans say the administration is using executive privilege to impede the investigation. keeping both sides honest, it's worth points out facts. this is the first time president obama has invoked executive privilege. back when democrats controlled the house, any republican administration was claiming executive privilege for the sixth time. the sound bites were 180 degrees opposite. back then, as democratic house members debated contempt citation against two george w. advisers, republican members including darrell issa simply walked out. listen. >> we will not stand here and watch this floor be abused for pure political grand standing at the expense of our national security. we will not stand for this and we will not stay for this. and i would ask my house republican colleagues and those who believe that we should be here protecting the american people not vote on this bill. let's just get up and leave. >> that's the complete opposite of their position today. also now keeping the white house honest, president obama's views on executive privilege do seem to have changed an awful lot, now that he's chief executive. here's senator obama back in 2007 during the bush showdown. >> there's been a tendency on the part of this administration to try to hide behind executive privilege every time there's something a little shaky that's taking place. and i think the administration would be best served by coming clean on this. i think the american people deserve to know what's going on there. >> republican congressman trey gowdy. whom you heard from just a moment ago. thanks for being with us. you said president obama is, quote, either part of it or he's not. if he's part of it, there's a series of witnesses that misled the committee. if he's not part of it, he has no business exerting executive privilege. what do you mean by that statement? are you implying the president is part of covering something up? >> no, quite the opposite. we had no one testify before either judiciary or oversight who said the president knew about fast and furious at all. he said he didn't know about it and i take him at his word. my point was to point out the absurdity of asserting executive privilege if you had no knowledge of it. he doesn't have to worry about his counsel being subpoenaed before members of congress. he had no conversations. >> that's not actually true, though. vice president cheney used executive privilege for discussions about energy policy. it was even used with hillary clinton in her role in the health care debate under the clinton administration. so it doesn't necessarily mean the president was sitting in meetings. >> well, what does it mean then? it's executive privilege. it has to mean something. it can't cover your entire administration or no one would have to turn over documents. >> one of your colleagues said eric holder is protecting documents and is in compliance by statutes passed by congress and signed by the president of the united states. clearly you voetded to hold him in contempt of congress. you disagree with that? >> no, he's partially correct. the initial request was for wiretap application, which rule 6-c does not allow anyone to give to anyone who's not part of the investigation or the trial. so to the extent that the original request for documents was overly broad and included protected material, then mr. cummings is correct. where he's not correct is after chairman issa narrowed the scope of documents to not include anything that was legally prohibited from being discovered, he's still not complied. what could possibly be protected about the drafting of a false letter to a committee of congress? >> but back in the bush administration when cheney was talking about executive privilege because of discussions on energy policy and discussions from people outside the white house even, republicans rallied around him and said it's legitimate. it was very much a partisan issue, just as this is now. if it was okay, though, under the bush administration, why isn't it okay now? what's the difference? >> anderson, i've never subscribed to that theory in life, which is why i may not be long for this town. i was a prosecutor back when that's going on. the notion that it's okay for me to do it because you did it has never been appealing to me. if it was wrong to do it now, it was wrong to do it then and i hoped a court would intervene and say you're wrong to assert executive privilege. the fact that a republican does something doesn't mean i automatically agree with it. in fact, i would be happy to have everyone who's had their fingerprints on wide receiver, fast and furious, any gun walking investigation comment. i don't think you would be able to tell much of a difference in the tone of my questions irrespective of their political persuasion. >> what happens next? i mean, this is going to go to a vote in the full house. how do you see this being brought to a resolution? do you think it's going to wind up in the courts? >> i hope not. i hope he gives us the documents. it's not a political exercise to me. i want to know how fast and furious happened. i want to know how a false letter was delivered to a committee of congress. i hope we don't get to that point because i hope the attorney general gives us the documents. if he doesn't, then yeah, we'll vote on it on the floor of the house. there's three different forms of contempt. there's the plenary powers of congress, there's criminal contempt, civil contempt. if it's criminal, it will be referred to the u.s. attorney for the district of columbia. if it's civil, it will go to a federal judge here in the district of columbia. >> appreciate your time today. thank you very much, sir. >> thank you. jeffrey toobin joins me now to take us through the legal ins and outs of the executive privilege. you just heard the congressman say i take him at his word. he said he would vote the same way under the bush administration as he does now. but does it only apply to national security issues or that the president is having a conversation about? >> no. the courts said it's about the internal deliberations of the executive branch. as you pointed outthere are supreme court cases involving the vice president. there are many cases involving the president's advisers. you know, sometimes executive privilege is upheld, sometimes it's not. but the president himself doesn't have to be involved and national security doesn't have to be involved. >> certainly some people are going to look at this and say look, the president obviously has something to hide by invoking this executive privilege. you say not necessary? >> not necessary. every president in the modern era since richard nixon, including richard nixon have cited executive privilege. sometimes -- >> explain the idea behind it, the rationale behind it. >> the idea behind it is pretty simple. ice that the executive branch, the white house and the president and his or her advisers need space to be able to consider all sorts of policy options without the worry that they will be subpoenaed to disclose exactly everything that they considered. now, the countervailing argument or issue is the constitution says the legislative branch, the congress, has a right to investigate, to engage in oversight for the executive branch. so those two ideas are in tension. and there are legitimate good faith fights over what's covered by executive privilege. and those have come up in every recent administration. >> there are those who would say look, if there's nothing to hide, why invoke this, though? it's basically on principle? >> it is on principle. at least that's what the obama administration is asserting. and that's what the bush administration asserted the last time we had this kind of conflict. >> the flip side is if you want to hide something, this is a good way to hide sufficient stuff? >> it is. and certainly the most famous case of all involving executive privilege was united states versus nixon where the supreme court 9-0 in -- held that nixon had to disclose the white house tapes. and those turned out to be extremely incriminating and led directly to his resignation. so ever since nixon, the innovation of executive privilege has had kind of a nasty taint. and it's guilt by association with the most corrupt modern president. >> so basically you think this kind of goes away in the courts? it's lost in the election hoopla? >> i absolutely do. i think this will not have a neat resolution. it's embarrassing for eric holder. i don't think he's going to be found in contempt, that he's going to be led away in handcuffs. this is just going to be another political dispute. and if people remember it at all, they'll remember 23 republicans were for it, 23 17 democrats were against it. >> the jury in the sandusky sex abuse trial is expected to get the case tomorrow. the defense rested their case earlier today. sandusky did not take the stand after all. clearly his lawyers seem to have made the right call, at least according to a lot of experts who are following this. jason carroll will recap the key testimony and our legal panel weigh in next. with the spark miles card from capital one, thor's couture gets the most rewards of any small business credit card. your boa! 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[ female announcer ] only from aveeno. you walk into a conventional mattress store, it's really not about you. they say, "well, if you wanted a firm bed you can lie on one of those. if you want a soft bed you can lie on one of those." we provide the exact individualization that your body needs. oh, wow, that feels really good! take it up one notch. oh gosh, yes. once you experience it, there's no going back. and right now, during our summer sleep sale, save $500 on our exceptional p6 bed set. only at the sleep number store, where queen mattresses start at just $699. >> jerry sandusky's lawyers rested their case without calling jerry sandusky to the stand. they've told reporters to stay tuned. in the end they shut that door, which many legal experts considered it risky, obviously. he's charged with 51 counts in the child sex abuse child. eight accusers described the alleged assaults they endured in sandusky's homes during trips in the penn state campus and showers. the case has torn a hole through the community. his revered boss was ousted as a result of the scandal, died of cancer in january. his storied career scarred by accusations that he didn't do as much as he could to try to stop the alleged abuse. now, if sandusky, who's 68 years old is convicted, he could spend the rest of his life in prison. the trial has gone very quickly. here's the recap of what we learned. >> reporter: the prosecution launched right in on day one, calling the first of eight sandusky accusers to the stand. alleged victim number one says he was assaulted in the basement of sandusky's home. the 18-year-old brought to tears. quote, after rubbing and cracking my back and the blowing of the stomach, he put his mouth on my privates. another alleged victim, number five, said sandusky assaulted him in a penn state shower. i kept lurching forward but i didn't have anywhere to go. he touched my genitalia. >> here he was, relationship with boy after boy after boy which by any conventional evaluation of any normal adult would say, this is just so terribly odd and wrong. >> reporter: on the second day in court, the prosecution turned to another of its key witnesses, former grad assistant mike mcqueary who said in 2001, he saw sandusky sexually assaulting a young boy in a penn state show per .quote, coach sandusky's arms wrapped around the boy's midsection, just as close as i think you could be. the prosecution went on, showing letters sandusky wrote to some of the boys. one reading, love never ends opinion it bears all things. the defense called 18 character witnesses often sandusky's behalf, many former members of second mile. a charity founded by sandusky. chad rexrose told jurors, i never had a father in my life and he was a father figure. the most anticipated character witness said she never saw inappropriate contact with her husband and young boys. she told the court, three of the accusers had actually visited the sandusky home as adults. one of the oddest moments came from joe amendola, comparing the trial to a soap opera. >> it's like "all my children." >> that went viral. people called him insensitive. amendola said he has not revealed the accusers' identities. a psychologist testified that he has histrionic personality disorder, which causes people to act inappropriately when not the center of attention. then the defense laid out what is their strongest move, presenting jurors with a recording which they say shows investigators leading an accuser. the final witness testifying, i felt like they kept asking me to say something that wasn't true. >> jason carroll joins me now. do we know why sandusky didn't testify today? >> reporter: well, that's a good question, anderson. i can tell you this, a source close to the case that i spoke to late yesterday afternoon and late last night tells me the, the idea of testifying or not testifying was still very much in play, still under discussion up until late last night. i'm also told that the final decision came down to two people -- joe amendola and jerry sandusky. you have to wonder if this whole idea of risk came into the equation. remember, sandusky gave two interviews to the media in the past. those interviews did not go well. and you have to wonder if attorneys were telling him or wondering what kind of risk would present itself if he were to take the stand under cross-examination. >> given that interview with costas, who knows what he would have said on the stand. it would have been incredible to listen to. what's next in terms of closing arguments tomorrow? >> reporter: i think what we can expect is look for each side to revisit some of the points they brought up during the trial. for the prosecution, that means presenting jerry sandusky as a serial predator. asking jurors to remind them to listen to the testimony the accusers gave. to look at the pictures they put up on the stand there of these accusers when they were youngsters. and from the defense's point of view, to point out these accusers are in it for the money and that many of these accusers, they say were coaxed into making these allegations by the investigators. >> let's talk now to criminal defense attorney mark geragos and marcia clark, author of "guilt by degrees." the defense rested today. were they able to cast reasonable doubt, do you think? >> i think with the right jurors, and i think they got the right jurors, that this could very well end up in a hung jury. i think the -- >> really? >> i think the character witnesses got on and off the stand. i think nay got on and off unscathed in terms of the character evidence. i think dottie was exactly what they needed. i think dottie is the reason he didn't take the stand. she was able to fill in some of the blanks they thought maybe he would have to put up there. but that was a high-risk proposition. and then i think ending with that idea that the investigators wanted to coach the witnesses, i think it was helpful to them. i think you'll end up seeing a hung jury. >> marcia, do you think reasonable doubt is possible? >> of course it's always possible, anderson. i think the defense hit every spot they had to hit. mark's right, they ended strong by putting on the witness who said i think the investigators were trying to tell me what to say, trying to get me to make a false accusation. that's a strong point for the defense when you have investigators admitting that they talked to the accusers about one another. they talked to one victim and said you're not the only one. but they denied having imparted any details of what one victim said to another. and that ultimately is extremely important. at the end of the day, anderson, the jury was the one who saw all of these witnesses testify, heard the heart wrenching testimony of these victims. i think it's very difficult to believe after all that we've seen and heard that they're going to find reasonable doubt given what we have seen in the entirety of the trial. i think the defense did what they could. i do not think it would be enough. >> mark, how important are closing arguments, both for defense and prosecution? can that really sway things one way or the other? >> you know what i also say, and i bet marcia will agree. i think the case is won or lost in jury selection. i think what happens in closing argument is if you have a juror who's with you, what you're doing is you ear arming that juror with an argument so when they go back in that deliberation room, they can articulate to the other jurors your position. you're never going to have on any case, your best jury. you're never going to have 12 jurors who are with you. you're going to have jurors who drive the discussion and what you want to do as an advocate is drive the discussion with the arguments that will convince the ot