as lawmakers take up her confirmation in a hearing that brings obamacare and the controversy surrounding it back very much into the spotlight. good morning to you. i'm jon scott. >> a big spotlight. it is still there. jon: they have to focus it somewhere. jenna: it comes in and out. hi, i'm jenna lee. hope you are off to a good day so far. silvia matthews burwell is on cap coal hill. she is the replacement for outgoinghhs secretary kathleen sebelius, support of key democrats will place a key role. they are interested how burwell will assume responsibility for obamacare and implement the health care law further. we'll bring you any back and forth anything particularly relevant to the big stories. jon: she has been through the process once at another agency. we'll see how this goes. for some background on sylvia matthews burwell, the hhs secretary nominee, she is 48 years old. was born in hinton, west virginia. she is second generation greek-american and a rhodes scholar. she got married in 2007 to steven burwell and together they have two children. jenna: we'll stay on capitol hill for another big story today. the house is getting set to make the new investigation into benghazi official. this is amid as you know a lost intense debate. former secretary of state hillary clinton is speaking out for the very first time about the formation of the select committee saying everything we need to know about benghazi has already been answered. chief intelligence correspondent catherine herridge is live in washington with more on this. >> reporter: jenna, at a ford foundation event in new york city last night hillary clinton took a question on benghazi and whether she felt the house select committee investigation was justified. clinton seemed to take a dig at republicans saying hearings and half dozen investigations so far left her satisfied while at same time conceding congress calls the shots on oversight. >> of course there are a lot of reasons why despite all of the hearings, all of the information that has been provide some choose not to be satisfied and choose to continue to move forward. that's their choice and, i do not believe there is any reason for it to continue in this way but they get to call the shots in the congress. >> reporter: senior house republican leadership source telling fox news that they expect the announcement of the appointment of members to the benghazi select committee as early as friday. the house speaker has said that it is time to take this investigation to the next level, citing the administration's failure to comply with congressional subpoenas. the resolution under consideration calls for 12 members to investigate the terrorist attack that killed ambassador chris stevens, foreign service officer sean smith and former navy seals, ty woods and glen doherty. the split on the committee is seven republicans and five democrats. late wednesday republicans and democrats debated resolution width we expect will go to the floor later today. >> this recent example of the administration's deliberate attempts to suppress the sharing of information is particularly unsettling and serves as the trigger point for the establishment of the something like that committee. >> unfortunately the house majority is determined to take the partisan path. with that, mr. chair, i can conclude we're not in agreement of you settings up the select committee. i yield back my time. >> reporter: democrats familiar with the leadership thinking suggesting that fox news they may want to give impression they're not getting involved right now but they will eventually join that committee, jenna. jenna: catherine, thank you. meantime a watchdog group says the white house is holding back more benghazi documents that could shed light on some of these controversial talking points in the handling of what happened in benghazi on september left vent. we'll discuss findings with republican congressman peter roskam later on "happening now." jon: is this a look ahead at the republican campaign strategy ahead of midterm elections coming up this november as the gop tries to tie democrats to benghazi and irs scandals, both the focus of congressional hearings this week? there's also the widespread unpopularity of obamacare. republicans pointing to this as a case of democratic mismanagement. add them all up, could they be a one, two, three, punch when it comes to the midterms? let's bring in our panel. juan williams, is a fox news political analyst. nina easton, senior editor and washington columnist for "fortune" magazine, also a fox news contributor. nina, you say it is important, and you think that republicans should be stressing the fact that they got some democratic support on this lois lerner vote? >> well, i think the problem here is that while there's a lot of questions still to be answered on the irs scandal, what lois lerner knows for example, and on benghazi, you know, was this white house creating a false narrative about a terrorist attack in order to boost their prospects in the midterm, in the presidential election? these are real questions. i'm concerned that republicans are going to be guilty of overreach. let's reach back to 1998. we all covered that. that was the impeachment scandal with monica lewinsky and, you know, that backfired on republicans. they lost five seats in the house and the public really wasn't along for that ride. they, they actually rallied around mostly, rallied around the president. jon: yeah. >> i think it is really important this is bipartisan, as much as they can get it, it will not be totally bipartisan and control their rhetoric going forward. jon: to be clear, nina, the i am peoplement really wasn't about what may have happened with monica lewinsky, it was about lying in front of a grand jury. >> absolute. i'm talking about the political impact and not the underlying, impeachment itself but the political impact, it definitely backfired on republicans in a midterm election in a second term of a president. and i think you just have to be careful about that. jon: well, we are in the second term of this president. juan, i want to take you back a year because it was just about a year ago, that lois lerner apologized in front of a sort of an obscure meeting of a bunch of tax lawyers, one friday afternoon and said, you know, we're sorry for any targeting of conservative groups. that is how this whole thing got out. it was not long after that that the president had this to say. listen. >> i will not tolerate this kind of behavior in any agency but especially in the irs. given the power that it has and the reach that it has in all of our lives. we're going to hold the responsible parties accountable. yesterday, i directed secretary lew to follow up on the ig audit to see how this happened and who is responsible and to make sure we understand all the facts. jon: so the president was pretty fired up back then, wage. what have we learned, what has he done since then. >> well there has been an fbi investigation, in addition to the treasury probe and, and of course there have been the congressional hearings, jon wherewer saw lerner take the fifth. so there's been a lot done but in terms of actual punishment very little. i think that is why you have conservative critics where are the consequences? where is anyone who, we can point to that has been held accountable? so far what we heard from eric holder, the attorney general, even from the fbi their investigation isn't complete but clearly there are people who want blood now because they're so upset, so angry. of course the president's totally right when you say you can't have the irs being used as a political tool by either side. jon: yeah. but, nina, you know there is something that seems to be sort of related in both the irs and the benghazi cases. in benghazi the president said, you know, we're going to find those responsible and we'll bring them to justice. that hasn't happened. in the irs case, you know, the president again was outraged but not a lot has happened. as juan said there has been some investigation. you've got lois lerner battling with congress but neither story from the point of view from the white house seems to have moved very far. >> the problem is you have got one party, the democrats controlling both the senate and the presidency and all those administration, all the departments like the justice department, and republicans just control the house. it is an uphill battle for them. i think on the lois lerner case, with contempt vote for contempt, i suspect this is going to move into the justice department, which by the way is run by eric holder has been held in contempt of congress and it will sit there. i don't think there will be movement. there will be a lot of frustration. so it will play out more politically than it is in kind of a legal reality. jon: all right. juan, back to the politics of it, if this is a preview of republican mid it term election strategy, will it be successful? >> well, i mean, look, the historical landscape right now is so strongly pro-republican, jon. i mean, you know, it looks, if you look at history, the typically pick up 29 seats in the house, six in the senate. right now, if you look at, generic preference, republicans outstrip democrats close to 10 plus points. so, things look good that way but terms of attacks stirring republican bases, that is what we're talking about here, with benghazi, irs, with health care, that is what the republicans are doing, keep their party's energy up so they will have high turnout come election day. meanwhile democrats are trying to stir their side up, i think this could backfire in terms of republicans obsession with these issues, coming to play as nina said in a way that stirs up democrats. i don't know for sure. but i don't see right now with regard to obamacare, benghazi, or irs that it is moving the dial. just not evident in the polls and evident what peel people are watching on tv. it is not there. jon: we have some time until november. juan williams, mean is a easton, thank you both. >> you're welcome. jenna: very busy day down in washington, d.c. and two important hearings are happening on capitol hill with economy in focus. fed chair janet yellen taking hot seat before the senate budget committee. she has been assuring that interest rates will not go up until the economy is stronger. she is answering questions about the possible effect of a minimum wage increase on the economy. >> do you agree with cbo's assessment that increased minimum wage, the one proposed would cost us jobs, up to a million what cbo estimates? >> so, i don't know what the exact number is. >> it will cost jobs? >> well, it will help individuals who benefit from a higher wage did you. >> but it will hurt individuals that don't have a job, correct. >> it is likely to have some negative effect on jobs and it's a question mark exactly how large that impact is. jenna: also on the hill today, treasury secretary jack lew taking questions from the house financial services committee. jon: well, overseas, pro-russian separatists tighten their grip on ukraine. this as the obama administration facing growing criticism that it should be doing more to try to calm the crisis there. also a television, televised debate on syria turns violent. journalists tear the set apart before lashing out at each other! more of this incredible video coming up. the oscar pistorius murder trial focuses on his show of grief. the prosecution says he was acting the night he shot his girlfriend. the defense says, pistorius was truly distraught. what will the judge ultimately believe? >> you saw him on the 13th, he killed on the 14th and saw him on the 15th? >> that's correct. yes, he missed reeva so much. that were his words, the first words that he said to me. hey. i'm ted and this is rudy. say "hi" rudy. [ barks ] [ chuckles ] i'd do anything to keep this guy happy and healthy. that's why i'm so excited about these new milk-bone brushing chews. whoa, i'm not the only one. it's a brilliant new way to take care of his teeth. clinically proven as effective as brushing. ok, here you go. have you ever seen a dog brush his own teeth? the twist and nub design cleans all the way down to the gum line, even reaching the back teeth. they taste like a treat, but they clean like a toothbrush. nothing says you care like a milk-bone brushing chew. [ barks ] jon: right now new information on some stories we're following. attorneys for the surviving suspect in the boston marathon bombing are asking a federal judge to suppress statements he made to law enforcement while hospitalized. the attorneys say the fbi violated dzhokhar tsarnaev rights by repeatedly questioning him without a lawyer and even after there was no more threat to public safety. veterans affairs secretary eric shinseki refusing to resign. the american legion and some in congress are pushing for his ouster in the wake of the delayed medical treatment at some vtals and clinics. shinseki is vowing to get to the bottom of the problem. german lawmakers seeking to interview edward snowden about surveillance of chancellor angela merkel. the former nsa employee caused an uproar in germany when he leaked documents showing that the agency targeted merkel's cell phone. programing note. fox news goes inside our nation's most secret agency, rocked by leaks and a suspicious public. is the nsa really keeping us safer? don't miss fox news reporting, the nsa's secret war, who is the enemy? anchored by bret baier, saturday may 10th at 10:00 p.m. eastern, sunday may 11th, 9:00 p.m. eastern. jenna: right now in the oscar pistorius murder trial the prosecution trying to show that he lied about details of the night that he shot and killed his girlfriend, reeva steinkamp. pistorius testified that the couple ate dinner ate hours before the shooting but an expert witness said that the autopsy showed there was still food in steenkamp's stomach perhaps showing the timeline for the evening was different than first portrayed. >> why would you say that the fact that she had a meal should be taken into account? why? >> my lady, i just said if it contained vegetables with insoluable fiber, that may have delayed gastric. in addition she was asleep. jenna: to explain all this, fox news producer paul tilsley has been in the courtroom since the very beginning, joins us on the phone live from south africa. paul, we're getting word of an unexpected witness coming forward for the defense? >> reporter: that's right, jenna. the defense may have thought they were on to a winner when early on tuesday they were contacted by oscar pistorius's probation officer. she told the court today she had come forward only this week because she is so upset the way the prosecutor, harry the pit pull, nel has been portraying oscar pistorius saying things like he is pretending to cry. she told the court she had her first probation session with the "blade runner" the day after the shooting and he was heartbroken, crying and vomiting. so far so good. but enter the prosecutor, nel. he got her to admit that pistorius had never said to her, in the police cell, while he waited for bail, that he was sorry he had shot, had killed his girlfriend. gamely, she continued under nel's barrage and he kept hammering away. >> he missed reeva so much that is were his words, the first words that he said to me. >> and you said further that his, he missed reeva so much but he had just shot and killed her the day before, does it make sense? >> reporter: so, just going on as to what else happened today, jenna, we have two other defense expert witnesses and i've got to tell you that today i believe they were both inconclusive. the first was an who couldn't appear to prove when reeva steinkamp had her last meal. when the case closed for the day a ballistics expert on the stand for the defense saying he mostly agreed with the prosecution's ballistics expert. tomorrow, harry nel will start his cross-examination of this witness and we can surely expect more fireworks, jenna. jenna: appreciate it very much. paul tilsley from south africa. our legal panel will weigh in on the oscar pistorius case later on this hour. jon: tornadoes touching down, the damage left behind, is the danger over? we're live with more on that. plus cries for justice from an ocean away after a german exchange student in montana is killed. the role of the state's controversial gun law might have played next. >> we're outraged that it happened, essentially happened to someone that we loved, someone dearly, and so it does, the first impression is, how could this happen? and we still say that every night, how could this happen? ay. the made for iphone hearing aid from starkey. with superior hearing aid technology, halo connects directly with your iphone. and with the trulink hearing control app, you get the most personalized hearing experience ever. halo is designed to: stream phone calls, facetime, music and more from your iphone directly to your hearing aids. allow discreet adjustment of your hearing aid settings with your iphone, help you hear comfortably in noisy environments, sound more natural and eliminate whistling. stay connected to your life. call today and ask for halo. made for iphone. made for you. call this number now. could mean less waiting for things like security backups and file downloads you'd take that test, right? well, what are you waiting for? you could literally be done with the test by now. now you could have done it twice. this is awkward. check your speed. see how fast your internet can be. switch now and add voice and tv for $34.90. comcast business built for business. jon: right now outrage directed at america from the other side of the atlantic as the killing of a german exchange student in montana puts the spotlight on the state's controversial gun law. patti ann browne live in the new york city newsroom with that. >> reporter: that's right, jon. we was german exchange student living in missoula, montana. he was recently out with friends at midnight. they were garage hopping, term for sneaking into open garages to steal something. when he opened a garage, motion sensors sounded. the 29-year-old homeowner grabbed his gun and ran outside. seeing movement in the garage he fired four times. the 17-year-old student was killed, at a vigil in memory of the soccer player the family that hosted dede from germany expressed outrage. >> first impression is, how could this happen? we still say that every night, how could this happen. just to have them saying we're here, we support you, we want you to know that the, this is not america. >> reporter: the case renewed debate about the castle doctrine, the law which differs from state to state allows people to use force to defend themselves against trespassers in their homes. karma is charged with deliberate homicide. he was trying to protect his girlfriend and 10-month-old baby. burglars broken into his home twice and stealing wallets and credit card n their rural area it can reportedly take responders up to an hour to arrive. critics karma had other options. hairstylist, karma was in her salon before the shooting he was been waitings up at night with his shotgun, to quote, shoot some kids. jon: patti ann browne ins newsroom. jenna: our legal panel will take that up in the 1:00 p.m. hour. a big story across the country, wild weather in the west. two tornadoes touch down in colorado as high winds pound the area. dangerous storms in parts of texas and kansas. william la jeunesse following the story live from our west coast bureau. william, it isn't over yet. >> reporter: the severe weather that slammed colorado and kansas yesterday will sock the midwest today, an area stretching from minneapolis to san antonio. check out what happened near wichita wednesday. high winds downing power lines, ripping off roofs, uprooting trees but this is something you don't often see. 90 mile-an-hour winds knocking over a freight train! toppling 33 cars, each one weighing about 40 tons. yet winds treated it like a toy. >> i didn't know what to think. i was shocked that it was strong enough to blow the train cars. i mean i come across all the snapped power poles and power lines down but i didn't think it was strong enough to blow the train over and until i looked down and saw it laying on its side. >> reporter: the weather system actually began in the rockies. several tornadoes were spotted in colorado yesterday. one near denver was on the ground for eight minutes. remarkably no injuries, but plenty of damage from wind and hail. you all heard the term, golf ball sized hail? you probably thought that was typical media hype. not in this case. here's proof yesterday from minnesota. you look at that it's huge. more like a tennis ball. kansas gets 3,000 hailstorms annually. jenna, damage was in the billions. bottom line, severe thunderstorms expected today, not as bad as those tornadoes that hit the south last week, at least we're hoping. >> fingers crossed. william, thank you. jon: there are some new accusations concerning those benghazi talking points that have become so controversial. what a watchdog group is saying now about the white house response to a terror attack that left four americans dead. also we want to hear from you on that story on garage hopping, the teen in montana, shot and killed while visiting someone else's garage. it got us what teenagers call fun these days. do you think teens are behaving worse these days? are we more aware of what they are up to? go to foxnews.com/happeningnow. click on the america's asking tab. you can weigh in with your thoughts. avo: wherever your journey takes you the expedia app helps you save with mobile-exclusive deals download the expedia app text expedia to 75309 expedia, find yours jenna: coming back with fox news alert, just after 11:30 eastern time. speaker boehner is making his weekly address to the press right now. talking a little bit about the economy. just mentioned the keystone pipeline as well. talking about jobs. obviously there's a lot going on capitol hill today. benghazi is one of those topics that we'll be speaking about that next. we'll watch to see if speaker boehner addresses any questions from the press on that. meantime tensions over that issue are really at a fever pitch on capitol hill. the full house is getting set to vote on creating a select committee to investigate benghazi. that vote officially expected this afternoon. this is all happening as conservative watchdog group says the white house is w heading more benghazi documents that could shed light on those controversial talking points. setting the stage for a possibly more explosive revelations. a lot of possibles there. let's bring in republican congressman and chief deputy whip peter roskam of illinois. nice to have you on the program. >> thank you very much. jenna: one of your jobs in leadership is get a sense where everybody is at essentially before a vote. interesting to have speaker boehner talk a little bit before his weekly address. he is one of the republicans relook r luck tant in the past to create a select committee. as of today, do you expect unanimous support from republicans in the house to vote for a select committee? >> i think nearly unanimous. i have not heard any objections and i think its based on the speaker's decision in the past of the as you pointed out there was reluctance on the part of the speaker to move forward with this. then it became clear that the white house hasn't come clean and is not likely to come clean on this. there is information that is not available right now because the white house has been sitting on it. he really had no choice but to move forward on this select committee. jenna: your colleagues across the aisle have differing points of view on the benghazi select committee. congressman van hollen was on fox news about an hour ago. here is what he had to say about the process so far. >> i think if there's a fair process, meaning that this is designed to get the facts, this is designed to be a substantive process as opposed to a political witch-hunt, then the answer is yes. but if this is going to be totally skewed and not a fair process then all you're getting is a kangaroo court and that doesn't serve interests of the truth or the american people. jenna: obviously a lost accusations there, congressman but how do you insure the process is a good one? >> i think the good news for congressman van hollen and others who are reluctant about this look at caliber and integrity of the new chairman. trey gowdy has a reputation a former u.s. attorney who has been bound by professionals rules of ethics and tried cases and sought justice in south carolina. as a colleague of his his reputation is stellar. he is a fair-minded individual and to that point, this is a desire to get to the facts preceding the event, during the event, and following the event and a fact finding mission. jenna: congressman van hollen was very critical of trey gowdy in interview with martha maccallum on "america's newsroom." are you confident that the democrats will participate? you have a leadership role, you have a sense of the votes, obviously the vote may be different from the democrats side but what do you think about democrats actually participating in this select committee? >> i don't have much confidence in the democratic leadership in the house to do anything. i think it's a mistake for them however not to participate in this committee because this committee is a fact-finding committee. it is a committee that is similar to committees that nancy pelosi set up when she was speaker of the house on global warming and other efforts that were of importance to her. it has the same balance and same requisite and same makeup and it would be, i think a mistake. when push comes to shove they're very likely to appoint members to the committee. jenna: speaking of a fact-finding part of it, an interesting point raise the by "politico" talking about some risks to the republican party. here is what "politico" had to say. that the panel could overreach. they could underperform. they could degenerate into a partisan witch-hunt. you heard some of these claims before, congressman. here is the final point that "politico" made. there is no clear sense what republicans sense they will learn from the investigation. we talked a lot about talking points. we talked about potentially other documents ready to be unveiled in some way. we talked a little bit about policy. if you could speak directly tour viewers what is the number one priority of this select committee? what exactly is the goal? >> the last point of the "politico" piece is the most poignant and is there. there is an expectation that the facts are going to come out. think about how many months after this tragedy the murder of these four individuals, and yet there is no sense of clarity in the public debates today about what preceded, what happened and what followed. the answer is, we don't know. so, yeah, there's a possibility that the facts could come forward that could exonerate the white house. if that's true, i think there would be a general sense of relief. it is ironic though that the very white house that is trying to defend this has not been forthcoming. and the american public deserves to know exactly what happened with no parsing and no ambiguity. jenna: you're confident this process will deliver that to the american people? >> i do. i think so. i think that, to the extent that congress has a coequal branch of government reflecting view of the american public is pushing back on a white house that is clearly reluctant and clearly given in a lawsuit one bit of information and to congress and american people different bits of information. they need to come together and this has to be reconciled and apparently only way to reconcile this is through this fact-finding effort. jenna: i have to run. i have to ask you the final question. what happens if democrats don't participate. i know you want them to and expect them to. say they don't. does the whole process, does it sort of end there? what is your backup plan? >> look, the committee will move forward regardless whether democrats choose to participate or not. those five seats will be empty seats if they choose to vacate them. would i argue that is abrogation of their responsibility but that is their prerogative. unambiguously this committee will move forward. jenna: congressman roskam, great to have you on program. thank you very much. >> thanks. jon: "happening now" on capitol hill, a husband committee hearing on the deadly conflict in ukraine. the obama administration struggling to explain what future actions by russia might trigger tougher sanctions against that country. assistant secretary of state for european affairs taking questions from the foreign affairs committee right now. this all happening as pro-russian insurgents are preparing for sunday's referendum on autonomy? russia's president vladmir putin earlier this week calling them to postpone the vote. greg palkot streaming live from donetsk ukraine. >> reporter: jon, despite a call from putin to put off the referendum on independence, separatists leaders say they will go ahead with the poll. here is little bit what we saw and heard today. center of pro-russian movement in eastern ukraine there was surprised at more conciliatory tone coming from president putin a door was left open a bit for more moderation but also determination was expressed to continue to fight on. one antigovernment activist saying that while he respects what putin said the rebels are sighs for what people want. other analysts are saying putin is trying to distance himself from more trouble ahead. as we traveled around the reaming on today we saw a lot of potential trouble. check point after check point manned by pro-russian rebels, their faces masked and carrying whips. one group shared strong opinions with us. other check points manned by ukrainian soldiers. there have been clashes around slavyansk recently. kiev said it will -- they said they will press on with the offensive regardless what the other side does. long lines of people in front of banks, grim and apparently nervous, both about fighting and about bank closures in that area, possibly quite concerned about losing their life savings. they were not too interested in talking to us. finally, jon, as for that claim by putin that he is in fact moving his troops away from the russian-ukrainian border, nato chief rasmussen said today, i have very good vision and i'm not seeing any movement at all. back to you. jon: yeah, no evidence of that so far from the russian side. greg palkot in donetsk, thank you. jenna: let's check out what is ahead onout numbered at the top of the hour? >> we're good happy to see you. former secretary of state hillary clinton is weighing in very for very first time to create a pro bowl for a benghazi select committee. why she says there is no need for souch thing. >> former nba star and weight spokesman, charles barkley in hot water for mocking overweight women on tv. >> he goss on and on. flight attendants say their uniforms are a bit too tight and put them at risk of being sexually harassed. >> our hashtag one lucky guy at top of the hour. >> he is lucky and smart. jenna: charles barkley taking on overweight women. >> i know what you're going to say, jenna. has he looked in the mirror? >> i wasn't going to say it but glad you did. thanks, guys. jenna: big problems for seattle 's big dig tunnel project. it will cost more than what was originally proposed. why taxpayers could be stuck with the bill. heat the debate gets way out of hand. you think television here is crazy. journalists going after each other in this country. we'll give you the story. woman: this is not exactly what i expected. man: definitely more murdery than the reviews said. captain obvious: this is a creepy room. man: oh hey, captain obvious. captain obvious: you should have used hotels.com. their genuine guest reviews are written by guests who have genuinely stayed there. instead of people who lie on the internet. son: look, a finger. captain: that's unsettling. man: you think? captain: all the time. except when i sleep. which i would not do here. hotels.com would have mentioned the finger. jon: check out this battle coming out of jordan today. a television debate that quickly escalates into a very destructive brawl after two journalists argued about whether they were supporting the syrian government or not. one panelists then accuses the other of being deviant and taking money from the syrian regime. the argument quickly becomes physical. the production staff runs in to try to pull the two apart. no action ended up being taken against either guy. maybe a bit after blow to their pride, most interesting thing is that you see how cheaply constructed our television sets are. jenna: senior producer just told me that looks like our postshow meeting. jon: oh. no. not around here. jenna: i just know that our camera crew, if that ever happened you would pull me off of jon, right? took a little time to get the rest of the production crew out there to separate them. jon: they didn't want to move too quickly, now, did they? jenna: gives us a good template to follow or perhaps avoid. another example of big government spending projects gone wild. the challenge perhaps as well to the term, shovel-ready projects. seattle's big dig for an underground highway is causing a very big headache. a massive digging machine is stuck under the city, and more than likely not moving for almost a year. fixing that machine is going to cost more than $100 million. buying a new one, will cost much less than that. contractors are now trying to force tax payers to pay for it all. dan springer live in our seattle bureau with more on this, dan? >> reporter: jenna, we've seen all this before, haven't we? the contractor has been able to dig 1000 feet, only 10% of the way. they say that the state owes them $190 million more for unforeseen problems. most of that the is repair of the world's largest tunnel boring machine, given the name, bertha, big bertha. it hit a well and has been stuck underneath downtown seattle's waterfront. fixing bertha will take until next spring and cost $125 million. that is $45 million more than she cost brand new. the fun nil is supposed to replace a double decker highway damaged in an earthquake of the price tag is $3.1 billion. the fear is that will balloon. >> people should be very worried what is going down right now. you have the state saying we're not paying for overruns. you have the contractor saying we're not paying. the contractor has provable history making other people pay. that means it will be the taxpayers. >> reporter: tunnel is drawing comparisons to this country's biggest public works boondoggle, boston's big dig, which cost taxpayers 14.$6 billion, nearly four times the original price. federal taxpayers picked up 60% of that, but here, the state is on the hook for all but $800 million. state officials are not confident the project will be finished on time or on budget. but they do seem sure taxpayers won't get fleeced. >> we have written the most robust contract that we can possibly write with the best experts from around the country, and we have brought a team together on the legal side to make sure that we are protecting the taxpayers at every step of the way. >> reporter: still, some worry the tunnel will never get finished. a repair like this one they're attempting has never been done before. that thing may be stuck under seattle forever, jenna. jenna: wow. that is something to think about, forever. all right, dan, story we'll continue to watch now, thank you very much. jon? jon: let's take a look at the dow for you. wall street seems to be pretty happy today. the dow is up about 87 points at this moment. we'll continue to keep an eye on the markets, let you know if there are any other developments but right now your 401(k) is pretty happy. the prosecution is trying to portray oscar pistorius as faking a show of grief after the shooting death of his girlfriend but a witness for the defense comes forward testifying that pistorius truly was heartbroken after killing reeva steinkamp. our legal panel weighs in on the effect of her testimony ahead. there's a new way to buy a car. it's called truecar. and truecar users... save time and money. so when you're... ready to buy a car, make sure you... never overpay. visit truecar.com today. could mean less waiting for things like security backups and file downloads you'd take that test, right? well, what are you waiting for? you could literally be done with the test by now. now you could have done it twice. this is awkward. check your speed. see how fast your internet can be. switch now and add voice and tv for $34.90. comcast business built for business. jon: oscar pistorius back in court today as the prosecution tries to poke holes in his testimony portraying him as unapologetic for the shooting that left his girlfriend dead. the defense presenting its own witness who testified that pistorius truly was distraught after reeva steinkamp was killed. joining us now, former prosecutor phil snyder, criminal defense attorney doug burns. let's start with this defense witness.ly, i mean this is his probation officer. ostensibly you would think she would be a good witness for the prosecution but she comes in and says, i talked to him the next day after the shooting. he was truly distraught. phil, is that an effective witness? >> i don't think it is an effective witness in this case because it's a bench trial. the judge has already sign him crying, distraught and traumatized. all she is saying what we already know. he is upset she is dead. that does not mean any way, shape or form, that on the night of the killing he didn't intend to murder her. jon: doug, i would be pretty upset if i shot any human being, if i took a life. but doesn't necessarily mean in a moment of rage that it didn't happen and that i wasn't responsible for it? >> no i agree. i certainly agree the fact that it is not a jury trial is a colossal point. every criminal trial lawyer knows it is totally different dynamic when you don't have a jury. hard to read what this judge is thinking. let me talk about another point which is interesting, the manager of the complex he lives in testified that pistorius called and said right at the time contemporaneously, you got to come whoever here, come over here, i shot a intruder. that is good defense point because he said it root at the time it happened. other thing i think prosecutors made a mistake when they went into things when everybody ate dinner and for that matter he is crying and faking. i don't think that was good move by the prosecutors because the defense is able to show a lot of remorse actually. that raises a little bit in one's mind. jon: you teed up our next topic because the pros, i'm sorry the defense brought in this anesthetist named christina lundgren. phil, she said she had a few theories why there was still food in reeva's stomach. the prosecution contend that if the story had gone the way pistorius said it did, that they ate quite a bit earlier, went to bed, fell asleep and all of this happened. there should not have been any food in her stomach. the anesthetist comes up and said yeah, there could have been but seems like she kind of testified for both sides. >> i didn't think she was particularly good witness. in fact, i'm still perplexed consistently on the defense's choice of witnesses of the proper witness here is clearly, clearly a pathologist, which is what the state presented. i don't know why they can't find pathologists anywhere in the world to support their theory. instead they find a clinician that doesn't even contradict the state's theory. they say there is a possibility that there are other explanations. in fact says, that usually after six hours the food should have been digested. so i think that again, the defense has made a mistake by putting wrong expert on the stand to contradict the state's expert. jon: well, it was, it's an inexact science, doug. can that does that help? i mean, did she at least raise some reasonable doubt? >> that is the thing. again what is interesting, the burden of proof is always on the prosecution. so, if as phil suggests, and i agree with him, it is pretty much of a tie, there is a little point here, there is a little point on the other side, that could be good in raising some reasonable doubt. but again, you know, the other thing, i understand parsing out this idea, jon, about remorse can be immediate even though you did a killing but can still go with a rhetorical question, how many murderers intentionally killed somebody because they wanted to kill them, saying oh, my god, i hope she stays alive? jon: we'll continue to watch. doug burns, phil snyder. thank you both. >> my pleasure. jon: we'll see you back here in one hour. "outnumbered" is coming up. vo: once upon a time there was a boy who traveled to a faraway place where villages floated on water and castles were houses dragons lurked giants stood tall and the good queen showed the boy it could all be real avo: whatever you can imagine, all in one place expedia, find yours ♪ ♪ ♪ i've got a to-do list and five acres of fresh air. ♪ top three tools -- hammer, screwdriver, front loader. happiness is a drive-over mower deck. a john deere dealer can teach tractors to anybody. [ don ] in the right hands, an imatch quick-hitch could probably cure most of the world's problems. [ male announcer ] that's how we run, and nothing runs like a deere. visit your dealer or johndeere.com/1family. >> we are about to find out who is in the middle. out numbered starts now. >> this is "outnumbered" we are here today and pete hagseth is the lucky guy. he is out numbered. >> i am back to correct all of my mistakes. >> no, you were awesome yesterday. you feeling it? >> it is great to be here. >> the house is set to vote on making the investigation into the