On the February 5 edition of Fox News' Fox & Friends, co-host Brian Kilmeade falsely claimed that during a congressional subcommittee hearing the previous day, Rep. Gary Ackerman (D-NY) was “going off at” Harry Markopolos, an accountant who blew the whistle on an alleged Ponzi scheme by investor Bernard Madoff. After Kilmeade said, "[L]et's listen to him on -- talking with Harry Markopolos yesterday," Fox & Friends aired video clips of Markopolos testifying before a House Financial Services subcommittee, and then a clip of Ackerman stating, “Your value to us is useless. Your value to the American people is worthless. Your contribution to this proceeding is zero.” However, Ackerman was not speaking to Markopolos when he made those comments; he was addressing Andrew Vollmer, acting general counsel of the Securities and Exchange Commission. Indeed, the video of Ackerman Fox & Friends showed contradicted Kilmeade's claim that Ackerman “was talking with Harry Markopolos” when he made his comments: Vollmer was shown on-screen responding to Ackerman. Further, contrary to Kilmeade's claim that Ackerman had been “going off at” Markopolos, Ackerman said to the SEC officials: “You know, if anybody made the case better than Mr. Markopolos, and I didn't think anybody could, about you people being completely inept, you've made the case better than him.”

Discussing the hearing in a February 5 article, The Washington Post reported:

Members of a House Financial Services subcommittee were angry at the SEC officials for two reasons: failing to catch Madoff before he defrauded investors despite detailed and ample warnings from whistleblower Harry Markopolos, yesterday's star witness, and failing to answer specific questions about Madoff, citing a form of executive privilege.

Time and again, SEC enforcement chief Linda Chatman Thomsen and acting general counsel Andrew N. Vollmer said they were unable to answer the panel's questions because the agency itself is being investigated by its inspector general for the way it handled Markopolos's tips, which came to the SEC nearly a decade ago.

Rep. Gary L. Ackerman (D-N.Y.) delivered the most sustained and withering attacks on the witnesses.

“The economy is in crisis,” Ackerman said. “We thought the enemy was Mr. Madoff. I think it's you,” Ackerman said to Vollmer.

“Your value to us is useless,” Ackerman continued. “Your value to the American people is worthless, your contribution to this proceeding is zero.”

Ackerman then employed a colorful metaphor to describe how the SEC responded, or did not, to Markopolos's investigation.

“One guy with a few friends and helpers discovered this thing nearly a decade ago,” Ackerman said. “He led you to this pile of dung that this Bernie Madoff was and stuck your nose in it and you couldn't figure it out. You couldn't find your backside with two hands with the lights on.”

From the February 4 hearing of the House Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises:

ACKERMAN: Why didn't you find him is the question.

LINDA THOMSEN (SEC enforcement director): I understand your question. And we cannot answer as to the specifics. I can talk generally --

ACKERMAN: You know, if anybody made the case better than Mr. Markopolos, and I didn't think anybody could, about you people being completely inept, you've made the case better than him.

THOMSEN: Well, sir, I am sorry you feel that way, profoundly.

[...]

REP. PAUL KANJORSKI (D-PA): So this has been passed through the new director or chairman of the commission and the members of the commission --

VOLLMER: The commissioner, sir.

KANJORSKI: -- and they agree and have instructed you to instruct this panel not to respond to the questions of Congress because of executive privilege and maybe other privileges contained in the 1941 Supreme Court case -- is that correct?

VOLLMER: The commission supports this position.

ACKERMAN: That wasn't the chairman's question.

VOLLMER: Yeah, I -- the answer to that specific question is no.

ACKERMAN: The answer is no. So you're acting on your own volition.

VOLLMER: No, I didn't say that. No, and I would disagree with that.

ACKERMAN: You know, most of us speak English, and we're having a hard time getting an answer from you. This is not the -- this was not discussed by the commission but it's the commission's position. Is that what you just said? Do you divine that?

VOLLMER: The commission's approved taking this position.

ACKERMAN: The commission has voted the position that you will cite executive privilege and not testifying before this committee in answering its questions?

VOLLMER: I couldn't say that to you honestly because the specific reasons --

ACKERMAN: Obviously.

VOLLMER: -- weren't discussed and given by the commission. But the basis is that we were seeking --

ACKERMAN: Your value to us is useless.

VOLLMER: -- an accommodation, and we've tried to seek accommodation with you.

ACKERMAN: Your value to the American people is worthless.

VOLLMER: And --

ACKERMAN: Your contribution to this proceeding is zero.

VOLLMER: -- we ask that you take into account the concerns that have been well-settled over many years, and we'd ask you to take those into account.

ACKERMAN: Our economy is in crisis, Mr. Vollmer. We thought the enemy was Mr. Madoff. I think it's you. You were the shield. You were the protector. And you come here and fumble through make-believe answers that you concoct and attribute it to executive privilege that you've not consulted with the executive branch on. Mr. Chairman, I'm through.

From the February 5 edition of Fox News' Fox & Friends:

KILMEADE: Hey, can we take a look at some of -- can we take a look at -- by the way, here's Gary Ackerman yesterday going off at the whistleblower. First, let's listen to him on -- talking with Harry Markopolos yesterday.

[begin video clip]

MARKOPOLOS: The SEC staff lacks the financial expertise and is incapable of understanding the complex financial instruments being traded in the 21st century.

[...]

MARKOPOLOS: It took me about five minutes to figure out that he was a fraud. So it took extensive time and research.

[...]

ACKERMAN: Your value to us is useless.

VOLLMER: -- an accommodation, and we've tried to seek accommodation with you.

ACKERMAN: Your value to the American people is worthless.

VOLLMER: And --

ACKERMAN: Your contribution to this proceeding is zero.

VOLLMER: -- we ask that you take into account --

[end video clip]

KILMEADE: Wow --

GRETCHEN CARLSON (co-host): So, there's Gary Ackerman.

KILMEADE: -- Gary Ackerman going off. He's been -- said a few off-the-hook comments.

STEVE DOOCY (co-host): Yeah. And so, $50 million worth of fraud just -- $50 billion worth of money gone. They think that they've tracked down $1 billion that they're going to divvy up. And now we know some of the people who lost money.