we still don't know this -- how when he was literally caught in the act raping a boy in a penn state locker room shower, did he get away with it and go on raping more boys? graduate assistant mike mcqueary saw the him with the boy in the shower and he froze and did not stop sandusky, but he did report what he saw, the legendary head coach joe paterno what he saw. and joe paterno told his bosses and everyone who had the power to stop jerry sandusky had the information they needed to stop jerry sundusky, but they didn't. why didn't they? that is the "360" exclusive that could point to more answers. an exclusive with susan candiotti. >> reporter: we have exchanged e-mails with sources close to the case, and about when penn state knew it and what they k w knew. the e-mails are between graham spanier, and athletic director tim curley now discussing the infamous 2001 shower incident where grad assistant mike mcqueary said he saw sandusky molesting a young boy. the first e-mail is dated 2001 which is 16 days after mcqueary reports to his boss, joe pate o paterno, about what he has seen in the shower. but paterno testified, quote, it was a sexual nature. by now mcqueary has testify tad he has told athletic director and vp schultz about what he saw, a boy up against the wall with sandusky up behind him. the alleged e-mails don't call sandusky by name, but subject or person. and in the first e-mail exchange schultz questions curley about a three-part plan to contact the s subject and contact the charitable organization, second mile, and contacting the department of welfare. that is an agency required by law to investigate suspected abuse. yet the next night curley has a change of heart and he sends an e-mail to president graham spanier and refers to a discussion they had two days earlier about sandusky. curley wants to talk it over with sandusky and work with him before deciding whether to contact child welfare. he also refers to coach paterno and did something he said change curley's mind? quote, after giving it more thought and talking it over with joe yesterday, i am uncomfortable with what we agreed were the next steps. i am having trouble with going to everyone but the person involved. i would be more comfortable meeting with the person, and tell them about the information that we received and tell him we are aware of the first situation. the first situation he's referring to is a separate shower incident that sandusky had with a boy in 1998. sandusky was not charged at the time, and he was convicted of both incidents at trial. curley plans to tell sandusky, quote, we feel that there is a problem, and offer professional help. and at some point soon inform his organization. sandusky's second mile. end quote. maybe the other one. according to the source with knowledge of the e-mails, he is referring to child welfare. if sandusky is quote cooperative c curley writes, quote, we would work with him. if not, we do not have a choice, and will inform the two groups. two hours later, penn state's president purportedly responds and agrees with the approach, quote, i am supportive, spanier writes, and adds this, the only downside for us is if the message isn't heard and acted upon, and we then become vulnerable for not having reported it. but that can be assessed down the road. spanier calls the plan humane and a reasonable way to proceed. the next day, vp schultz weighs in with an alleged e-mail to president spanier and athletic director curley. quote, this is a more humane and up front way to handle this, he writes. we will inform his organization with or without his cooperation and we can play by ear to decide about the other organization, and another reference a source says to outside authoritieauthot that never happened. authorities say that records show that suspicions about sandusky in 2001 were never reported to any outside agency. victim five was molested by sandusky in a penn state shower about six months after the mcqueary incident, and sandusky later went on to sexually abuse at least three other boys. years later, all testified at trial. bottom line, the prosecutors say that penn state never reported the 2001 incident and no one at the time ever appeared to look for that boy in the shower. and jerry sandusky, a man who led separate lives of good and evil went on grooming, selecting and abusing children. >> oh. >> soledad. >> just horrific. horrific. so what do curley and schultz' attorneys say about these e-mails? >> right. well, first, let's remember that curley and schultz are already charged with perjury and failure to report suspected child abuse. they have pleaded not guilty. sources say that spanier also could be charged. spanier's lawyers did not return repeated comments for comment, and lawyers however for curley and schultz provided this statement to cnn. quote, as governor tom corbett stated, if we were going to do this case, we had to have the best possible case to go against somebody like mr. sandusky who was loved by everybody. for curley, schultz, and spanier and paterno, the responsible and the human thing to do was like governor corbett to carefully and responsibly assess the best way to handle vague but troubling allegations faced with tough situations, good people trying to do their best to make the right decisions. >> that is -- >> exactly. there was also a spokesman for joe paterno's family, and we spoke with him, also and he say s he has not seen nor has the family seen any e-mails and he makes it clear that mr. paterno do did not communicate by e-mail and he said that joe always told the truth said the spokesman, and he said we welcome any information that anyone has about this, but he emphasized that coach paterno testified truthfully before the grand jury. >> one of the words in the e-mail is the problematic word the only downside for us is that we could be vulnerable which is a quote from the e-mail. both of the men have testified before the grand jury and what are the incon ssistencies or the are between the e-mails and what they said to the grand jury? >> well, i'm not sure that we see a smoking gun on this, soledad, but curley does tell a prosecutor that he did not know of any other incident in sandusky's past prior to the 2001 incident yet in an e-mail to the president, he says he plans to tell sandusky that we are aware of the first situation, so as for schultz, he tells the grand jury, the 1998 shower incident was reported to child welfare, but also testified that his recollection would be that they were asked to look into the 2001 allegation, the child agency, but soled a dad, as we know, no record of anyone reporting that incident to any child welfare agency. as we all know as well. several investigations remain under way here. you have got penn state's own independent investigation run by louie freeh, the former director of the fbi and the pennsylvania attorney general's office and the justice department and you have the ncaa and you have the u.s. department of education all looking at this. >> all absolutely not over yet even with the end of that trial. >> far from it. >> susan candiotti, terrific reporting on that. let's get to tom kleen who is an attorney for victim five who might not have been a victim at all if somebody had acted sooner. thank you for joining us, sir. what is your reaction to the e-mails? >> my reaction is shock. these e-mails which have been discussed that they existed to see the content of them today is shocking. it is unquestionable that had these men not engaged in a concert concerted, conscious, collaborate effort not the report it to authorities the young man i represent would not have been assaulted in the showers some six months later. it is appalling, soledad. >> gary schultz and tim curley as you well know are already facing charges in connection with failing to report the abuse and lying to authorities and how do you see these e-mails in whatever legal action will follow? >> well, these e-mails of course are irrelevant to that particular action. they are also relevant to the investigation by former fbi director louie freeh and relevant to the civil litigation. here is what appears to be on the face reckless conduct and a university president who is making a conscious, deliberative effort and approving the failure to report a known sexual predator. that conduct is likely part of the reason why mr. spanier was dismisse dismissed. >> you hear a lot of times in the e-mails the word humane approach. what do you make of that? >> well, there was quite the contrary, quite to the contrary. the human thing to do would have been to report mr. sandusky to the dpw to report him to the authorities, and instead, there was this conscious decision made that they were just going to go at it simply by having mr. curley talk to sandusky. my word. that just is not right. the fact of the matter is that they had a plan in place as susan candiotti reports to do a number of things which didn't carry the ball all of the way to use their term, but the fact of the matter is that they were going to report it to dpw, and they made a decision to retrench and retreat on that very policy. and the fact of the matter is that while mr. p paterno does not use e-mail so he says the fact of the matter is that curley changed the plan according to the content of these e-mails right after he spoke with joe paterno. that, of course, is a critical piece of information, and something that none of us knew until the content of these e-mails was revealed tonight. >> so what do you think should be the legal liability of these men, especially maybe the president? >> penn state is responsible for their conduct. we are assessing their conduct. i have said that while penn state has reached out to me and to other victims and their attorneys, the fact of the matter is that we cannot begin to talk to penn state until we have full and complete disclosure, and this i would believe is the tip of the iceberg. >> as you know, you heard the statement a moment ago from s susan that part of the statement said good people try to do their best to make the right decisions as they have their excuse of why they did not move forward in these allegations of these e-mails? what do you think of that? >> they made a conscious decision to make the wrong decision. they knew and they even discussed in the content of these e-mails as i have seen them tonight this they would face the consequences and the nonreporting later on should it come up and come back to them. well, it sure has come back to them, and they are now facing both criminal and civil proceedings as a result of it. there could not be a poorer choices that were made and more reckless conduct by people charged with the running of a university, the president, the athletic director and the vice president. these e-mails, the content of which is now being revealed demonstrates that very clearly and very poignantly. they made a collaborate, collective decision to do what they did. they talked and it in the e-mails and they made a decision to retreat from the poor plan that they had developed, and they went to simply talking to the subject, mr. sandusky. interestingly, these e-mails, the content off them, it is all in code. they talk about the subject. they talk about the quote, other organization. they talk about these things as though they were, as though they were conspiring and collaborating to do something that they knew was wrong. >> and so what do you think that the consequences should be? what would you like to see? >> the consequences? i would like to see the attorney general investigate this further, and i am sure they have, and i would like to see mr. freeh's report, and we are waiting on that and we hope to see it soon. i believe that this will be the subject. i intend to ask tough questions to mr. curley, mr. schultz, and mr. spanier, myself. this will be the subject of a detailed investigation, word by word, line by line. >> prison time for them? >> well, i leave that in the hands of the prosecution. i attended the sandusky trial every piece of evidence that was presented, and it was presented in a very disciplined way. i have confidence in the attorney general to look at this very carefully. my job is the civil side of this. i believe that penn state is civilly liable to the young man who i represent and to others, and here we have evidence that just stares you in the face that they knew and could have prevented it, but instead, they were worried about mr. sandusky's guest. the young man i represented was no guest. he was assaulted by a man in the shower and a man who was given keys who had information going back to 1998. >> you can follow the program on twitter@ac 360 and also tweeting at soledad underscore o'brien. and now, why won't the campaign concede the fact that the new health care reform will be a tax. we are keeping them honest up next. so you see everything the way it's meant to be seen. maybe even a little better. experience life well lit, ask for transitions adaptive lenses. visit seemoresights.com for your chance to win the ultimate sightseeing dream vacation and more great prizes. brought to you by transitions lenses, the official sponsor of sightseeing. i have to know the weather patterns. i upgraded to the new sprint direct connect. so i can get three times the coverage. 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[ chirp ] 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. we provide the exact individualization that your body needs. wow, that feels really good! once you experience it, there's no going back. and don't miss our special financing now through july 4th only. plus enjoy the lowest prices of the season on selected bed sets only at the sleep number store, where queen mattresses start at just $699. keeping them honest now. on how each side is spinning the supreme court's epic decision on health care reform. safe to say the white house is delighted that chief justice roberts saved the law. as for how he saved it, well, not so much. he said making people buy health insurance was no good under congress' power to regulate commerce but just fine under the power to tax. so victory goes to the white house. but then again so does this. >> this law is a tax. >> obama care is the biggest tax increase in american history. >> the government could decide that we're going to tax you if you don't eat broccoli on tuesday. >> in fact, the affordable care act is a tax. it is the largest tax in america's history. >> the middle class tax increase. >> the largest tax increases on the middle class in history. >> obama care raises taxes on the american people. >> keeping them honest. when republicans say it's a tax to make people pay for going uninsured, they're absolutely right. the provisions are written into the tax code. they're enforced by the irs. as chief justice roberts wrote in his opinion, the only effect of the individual mandate is to raise taxes on those who do not do so. and thus the law may be upheld as a tax. however, to call it as you just heard the biggest tax increase in history is wrong. it's not even close. politifact calling the claim pants on fire false. that said, any mention of taxes in connection with the health care law is poison to the administration and the campaign. listen to obama 2012 spokeswoman stephanie cutter this morning on "starting point." >> what john roberts said is that we have the power to impose this penalty on people through the taxation clause. it's a penalty. >> it's a penalty? >> it's a penalty. >> yesterday we learn it was a tax. >> let me finish. so i'm assuming everybody at this table has private insurance. so this penalty does not apply to us. there are some people who are choosing not to get insurance because they can't afford it. for those people, what we call free riders, what mitt romney has called free riders. we pay their health care costs up to $1,000 on our premiums. so they need to take individual responsibility for their health care and pay a penalty if they choose not to get it. >> i get how the law works and i understand you like the law very well, but i'm thoroughly confused. now, is your position that the new law is a tax or a penalty? >> it's a penalty. that if you choose not to get health care and you're imposing a hidden tax on all of us because we pay for your health care, then you'll pay a penalty. >> so, if that sounds familiar, it's because that's what her old boss was saying, somewhat more concisely, back when he was selling the health care law. >> for us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. what it's saying is we're not going to have other people carrying your burdens for you. anymore than the fact that right now everybody in america just about has to get auto insurance. nobody considers that a tax increase. >> so, the song remains the same. however, also keeping them honest, mitt romney was singing that exact same tune when he was selling his own nearly identical health care plan back when he was governor of massachusetts. he's singing a different tune today. so, wi us tonight, democratic strategist paul begala, who's advising the top pro obama super pac. also chief political correspondent candy crowley. paul, we'll start with you. you heard what stephanie cutter had to say. do you think the obama campaign is between a rock and hard place on this? is it a tax? is it a penalty? the supreme court just said it's a tax. she's saying no, it's a penalty. is that a problem? >> usually, for generations, democrats have talked about health care in terms of empathy. care about our neighbors. that's great. that gets fellow bleeding hearts like me. van holland and stephanie cutter from the obama campaign are now appealing to people who are a little more self-interested. saying you're paying a tax already. it's a free riders, free loaders tax. these are very morally freighted terms. democrats usually don't use that kind of language. i'm happy to hear them say no, it's a tax that only free loaders have to pay. it's a penalty that only free riders have to pay, and i like that language. i think it's more successful for democrats. >> how much could this hinder republican's efforts to attack this? the affordable care act obviously is modeled on what he did in massachusetts, right? >> it matters because it comes up every time mitt romney says it, you get an e-mail blast from either the dnc or some form of democratic outfit. and when you have somebody on a show, the first thing they're going to say to you, well, mitt romney had the exact same plan and he didn't say it was a tax. i actually like the nancy pelosi approach. call it whatever you want to call it. it's constitutional. i think this is -- they're dancing on the head of a pin here, the democrats. i think they ought to get off it and go find it's a tax it it's a tax on people who won't buy their own health care insurance and, like, be done with it. >> paul, when you look at the folk, moving from dancing on the head of the pin to seeing how people in the electorate might feel about it there are now poll results out about yesterday's ruling. a "usa today" gallup poll. if you're look more specifically at independents, 49%. they're the important independents, 49% say they want to repeal all or parts of the bill. 40% say they want to keep it or expand the law. how much of a problem is that for president