[King:] In this half-hour of "JOHN KING, USA," jurors will hear closing arguments in the Jerry Sandusky trial tomorrow. They will not hear though from the former assistant coach charged with 51 counts. This senator says he is dumbfounded by President Obama's use of executive privilege. Chuck Grassley of Iowa is my guest. And blunders from both the Obama and the Romney campaigns the "Truth" about which candidate is having the worst week. Let's get back to our top story, the dramatic showdown between the Obama White House and the Republican House. The House Oversight Committee voting this afternoon to hold the nation's highest law enforcement officer, Eric Holder, the attorney general, in contempt. President Obama earlier today invoking executive privilege, saying the administration did not have to turn to a House committee documents they have been demanding from the attorney general for months. But the president's action did not stop the vote.
[Unidentified Female:] Twenty-three ayes, 17 nos.
[Issa:] The ayes have it, and a contempt report is ordered to ordered reported to the House.
[King:] Let's go now to Capitol Hill. Senator Chuck Grassley, Republican of Iowa, is the ranking member of the Senate Judiciary Committee, and they have also been closely tracking and investigated the Fast and Furious issue. Senator, the attorney general tonight says this is unnecessary, unwarranted and he says of the House committee vote to hold him in contempt. "It is election-year tactic intended to distract attention and as a result has deflected critical resources from fulfilling my responsibilities, my top priority at the Department of Justice, protecting the American people." Answer the attorney general.
[Sen. Charles Grassley , Iowa:] If it was last February or March, when we started this, he might have credibility when he says that. But after 18 months of being stonewalled by the attorney general, I think that's intellectually dishonest.
[King:] Your chairman, Pat Leahy, on the Senate side this vote was on the House side but Chairman Leahy says this tonight: "The Bush Justice Department was not nearly this forthcoming and never tried to reach a reasonable accommodation in response to our oversight efforts." Chairman Leahy trying to make the case that Attorney General Holder is trying. Is he?
[Grassley:] I can tell you this. When the Democrats were investigating the U.S. attorneys that were accused of responding to political pressure, that I joined Senator Leahy in efforts to get transparency of all of the documents. I have not had that support of the Democrats in the Senate in my investigation.
[King:] You mention the U.S. attorneys firing investigation. When the House committee looked into that, Darrell Issa said this when President Bush invoked executive privilege. Darrell Issa, now the change, said quote They didn't need explaining to the public." Is it possible now because of his past statements on executive privilege issues, the Democrats could say right now he is being partisan or he's being a hypocrite?
[Grassley:] They can say that about anybody they want to say it about, but they can't say it about Chuck Grassley's investigations and oversight work for the past 25, 30 years.
[King:] Well, let me read a bit of the statement you issued today when the administration did claim executive privilege. You said this: "How can the president assert executive privilege if there was no White House involvement? How can the president exert executive privilege over documents he's supposedly never seen. Is something very big being hidden to go to this extreme?" Senator, what do you think they're hiding?
[Grassley:] Well, throughout 18 months of investigation, I never had any idea whatsoever that the president was involved, and I never accused the president of being involved. I always wondered for the most extent how high up in the Justice Department it went, and I could only trace it up to the assistant attorney general. Beyond that, is the attorney general involved in approving this? But now it raises the question of whether what does the president know and when did he know it by the claim of executive privilege.
[King:] Do you see this going do you see any path to a resolution, sir? Or do you think the House will vote on its contempt citation, and if it does, what happens on the Senate side?
[Grassley:] Well, listen, a contempt citation does not come to the Senate, so it will go from the House of Representatives to the U.S. attorney, District of Columbia, with possible charges against the attorney general, and if those charges would stand, he could be subject to a misdemeanor with up to a jail term andor some fine.
[King:] I understand it doesn't go to the Senate, sir. My question was what happens to the Senate investigation?
[Grassley:] Oh.
[King:] Did the investigation go forward or do you try? It's the Senate side, as you know. It's supposed to be the world's most deliberative body. It's will there be some effort, with Chairman Leahy and you as the ranking member, to try to find a circuit breaker here before the House takes such extraordinary step?
[Grassley:] Well, Senator Leahy's never offered to have a hearing, and and you know, when there's a vacuum out there, that vacuum is filled by somebody. And I think I filled that vacuum over the last 18 months. And so far Senator Leahy said that he wouldn't have a hearing until the inspector general of the judiciary, or the Justice Department got done with their work. Then he said he would have a hearing. But that's going to be too late. I think this this isn't just in the Senate a stall. This is a stall in the Justice Department, I think, to get by 'til the next election, because I think there's something embarrassing politically to this administration that they want to keep out of the public's minds, and that's why we've been stone walled.
[King:] Senator Chuck Grassley, appreciate your time tonight, sir.
[Grassley:] Yes. Thank you.
[King:] From day one of Jerry Sandusky trial, there has been this question: would the defendant take the stand? Well, today we got the answer. It won't happen. The defense rested today. CNN contributor Sara Ganim has been on this case since day one. Sara, take us inside the decision. Jerry Sandusky's defense team deciding he would not go on the stand. Why? Having audio problems there, obviously, with Sara Ganim. We'll try to get back to her if we can. But let's get some perspective on where this trial might be headed next with the former prosecutor, Wendy Murphy. Wendy, Jerry Sandusky does not take the stand. You would you said you would advise when we talked last about this, you would have if you were his attorney, you would have kept him in the seat and not allow him to. How does it change the case going forward in the closing arguments, for example, tomorrow. Does the defense lawyer have to explain why the defendant didn't take the stand to the jury?
[Wendy Murphy, Former Prosecutor:] You know, John, he doesn't have to, but he'll probably make some reference to it being his decision, because he doesn't want them to think badly of Jerry Sandusky. And he promised them in his opening that he would testify, or he at least implied strongly that that would happen. So I think he has to take responsibility for it, but he won't focus on it for long. And the jury will be instructed not to consider that, and you know, hopefully, the jury will do the right thing. Constitutionally speaking, they're not allowed to take it into consideration. As a theatrical matter, this man who so many witnesses for the defense testified under oath that he was the greatest since sliced bread, wonderful man, generous and loving to children, sat quietly and said nothing after eight victims took the stand and all of this evidence was presented against him? The jury can't help but think, "Hmm, if that were me, I'd testify if I were innocent."
[King:] But help me break down the case. First from a prosecution standpoint, you go back through the testimony, it's a pretty quick case. You had the alleged victims testify, but moved through it pretty quickly. What in your mind stands out? Did the prosecution in your mind meet its test or did it leave an opening?
[Murphy:] Well, I'll tell you, the burden of proof is tough. Beyond a reasonable doubt is the toughest burden of proof in law. And yet this case went in so quickly, in my opinion it was under- prosecuted. The only thing I can infer from that is that the prosecutor feels very, very confident. For example, John, one of the things you would typically see in a case like this is an expert witness testifying about something like child abuse accommodation syndrome to help explain to the jury why sometimes kids stay friendly with their abusers for years after the fact, and why they don't tell for, you know, many, many years. Often jurors don't understand that, and they think that cuts against victims' credibility. The prosecution didn't offer up such a witness. So you have to believe the prosecutor sees this case as so strong and that the victims themselves were so good on the stand that they didn't bother with anything beyond the basics, and that's why it went in so quickly. You know, I don't want to overstate it, but I can imagine the prosecution's case tomorrow is also going to be very short, very tight. And one of the arguments they're going to say, one of the arguments they're going to make and something they're going to focus on, is, look, the defense would have you believe that all eight of these victims would submit themselves to risk of felony perjury prosecution. And you saw them. You looked in their eyes. You saw them crying. You saw their demeanor on the stand. Was that the testimony of a liar, as the defense would have you believe? Or was that a truthful young man taking the stand? And consider all of the corroboration in this case. You know, Mike McQueary, the janitor's testimony, the documentary evidence, the so-called love letters. Would you honestly discount to the point of reasonable doubt the strength of the prosecution's case? Because the defense, defense has no burden of proof, but they have done nothing, nothing to undermine the prosecution's case. That's the kind of closing we're going to hear tomorrow, and I think it's going to be very short. Because they don't have to explain away much of what the defense put on in its case, because they didn't really make much of a dent.
[King:] And do you agree with that, when the prosecution gets up there and says, you know, the defense proved nothing, that always is a challenge for a defense lawyer, prove at least at a minimum reasonable doubt if you can't attack the facts of the prosecution's case. Did they come close?
[Murphy:] No. I mean, the odd thing in this case, John, is that some of the defense witnesses actually became good for the prosecution. Even Dottie Sandusky, as much as she tried to be supportive of her husband, ultimately testified as a witness for the prosecution during what was supposed to be a cross-examination and wasn't. She said, "I know of no motive to lie for these kids," and she confirmed that Jerry was often down in the basement, without her, all alone tucking the kids in. You know, there was so much about the defense case that actually added to the prosecution's case, I don't know what to say, except that I think the defense is going to have a very difficult time. I hope and expect that one of the things they're going to do is emphasize only those counts where there were real weaknesses, like where the investigators made suggestions about the kinds of testimonies they had already heard from other kids, and you know, the possibility of a money motive. One of the victims and a parent was reportedly saying things like "I can't wait to buy a new House after I cash in on my lawsuit." You know, that kind of stuff resonates with juries. They don't, you know they don't want to over-believe just because they feel a lot of emotional reactions to this case. And so I do think he'll probably win some of the charges. But again, 50 charges he's facing. Even if he wins ten, you know, instead of 500 years, it's 400 years. There's not there's not a lot of light at the end of the tunnel for Jerry Sandusky.
[King:] Former prosecutor, Wendy Murphy. Appreciate your insights tonight. Let's get back now outside the courtroom, Sara Ganim. She's back with us. Sara, sorry for the audio glitch here at the beginning. Take us inside the decision by the defense team. I assume Jerry Sandusky, given the fact he did so many media interviews, in his heart, he probably wanted to testify. Why didn't he?
[Sara Ganim, Cnn Contributor:] John, the short answer is that we don't know why. The defense attorneys did not say, there's a gag order on the case. But you know, they spent the whole week trying for small victories, really trying to chip away at the prosecution's case. And I think that they were able to explain, give alternate explanations for some of the strange behavior that Jerry Sandusky has been accused of. And so the only thing that I could guess is that, you know, they didn't want to potentially mess that up by putting him on the stand. You know, he's spoken publicly several times, and every time he does, he's widely criticized for what he says. And putting him on the stand would give prosecutors an opportunity to really go after him. Dottie Sandusky, his wife, testified on his behalf yesterday and pretty much explained you know, she was pretty forthright with her husband's innocence and tried to give, I think, what might have been his side of the story. You know, one, that he was very busy; two, that this was their lifestyle, that they brought kids into their home and mentored them. And she she went after the credibility of some of these accusers, as well. So I think that maybe in some ways they believe that she gave his side of the story and really didn't endure much cross-examination and might have been satisfied with that.
[King:] Sara Ganim outside the courtroom. She'll be there again tomorrow as the closing arguments take place in front of the jury. Sara, thanks very much for your help. We'll stay in touch. Up next here, the truth on who's the worst week, and remember, it's only Wednesday. Mitt Romney or President Obama?