easy. great. call or click-- we'll send you strips and a meter, free. free is good. freestyle lite test strips. call or click today. jon: we told you two pakistani airline flights were grounded because of bomb threats. our producer on the ground said they were checked, given the all clear, no bombs found. the passengers will be reboarded and the flights will take off again. jenna: thanks for joining us everybody. jon: "america live" starts right now. megyn: fox news alert, we are getting reports of brand-new details on president obama's highly anticipated jobs plan set to be unveiled to america in just over 24 hours. welcome to "america live," everyone, i'm megyn kelly. we are now awaiting the daily white house press briefing where we could learn more about the administration's plan. it is estimated at nearly

$300 billion worth of spending. we are now being told it could be much, much more. we are hearing roughly 170 billion would go to extending unemployment benefits and maintaining payroll tax breaks already in place. ed henry is live from the briefing room now. >> reporter: there is confusion about what the price tag really is. there have been initial reports suggesting maybe it will be $300 billion. i've been getting waived off that figure and suggesting to me maybe it's going to be more than $300 billion when you add all of this up. one of the remaining questions as you mentioned that payroll tax cut being extended, that is a tax cut for workers. also on the table the president considering expanding that tax cut, if you will to also include employers. that could balloon the price tag of this. politically for this white house it's not such a bad thing for them to have a low bar set of maybe $300 billion in the initial reports, and then have some democrats who have been

saying you need to go big and bold maybe criticize that over the next 24 hours and then have the president step out tomorrow and say, no actually it's 400 billion, or 500 billion. there is a little bit of mystery here. there is also a lot of pressure on this president. the last time he used a setting like this. a joint session of congress to push one single plan it was healthcare on 9-9-09. he won in the end on that battle. at that point he had a much different political standing. in fox news polling in september of 2009 he had an approval rating on handling the economy of 55%. now it's down to 34% approving among the american public. that is a 21 point drop in two years because of the high unemployment number. megyn: reportedly a third bail out package is included for local governments to prevent some public sector layoffs. we've already bailed out local governments twice with the stimulus plan.

this would be, i guess number three. that is not without controversy. >> reporter: and that's why you're not going to hear jay carney from the podium behind me refer to anything like that as a bail out. you'll remember robert gibbs kept using things like extraordinary help, extraordinary assistance, because they know that word bail out can be very loaded and can really rally the american public against pieces of this plan, because there is deep frustration with what the federal government has done with the auto industry and others. the fact of the matter is we are told one of the things on the table is helping out some local and state governments, specifically to help some of the teachers who have been laid off in local communities, in various states around the country. that may be on the table as well. megyn: not bail outs. >> reporter: they won't use that word. megyn: not hand out, help out. >> reporter: exactly. megyn: we'll be listening to that. thank you. let's take a closer look now at the unemployment situation in the united states right now. more than 14 million americans are jobless. nearly half of them for more

than six months. the number of unemployed and under employed is some 25 million people, or 16% of the adult population. there is but one job available for every four job seekers now in this country. so if the president's plan can pass, and that's a big if, would it be enough? stu varney is host of varney & co on the fox business network. if it were to pass, certainly his supporters would say it is a start. >> reporter: it is a surprisingly modest proposal. would it create a lot of new jobs? that is an open question. 300billion, 400 billion, would it create new jobs? let's break it down for a second. half of the current proposal which i've heard about which would be extending the tax holiday, the payroll tax holiday and extending unemployment benefits, that is $170 billion worth of this package. that does nothing to create new

jobs. if you extended special help, or a bail out to the states, that essentially might save reate new jobs. it would not wean the addict off the drug of government money. so if you add it all up this is a surprisingly modest proposal. it's not really big, it's certainly not bold, and not much of it is new. and if you have to answer that question, would it really create that many new jobs, bearing in mind the number we need to create that you've just outlined, megyn, no it would not. it's modest at best. megyn: i guess the white house would argue that okay if you extend unemployment benefits it gets the unemployed spending money. if you extend the payroll tax it keeps money in people's pockets and they go and spend the money because they tend to be lower income americans who do not save it like the super rich, this is the white house's theory. they will argue that it will create jobs because people will be out there spending money and they buy things and people need

to be hired at retail stores and so on. >> that is classic cansian economics. we've already extende put the money into the economy and it hasn't worked that well. if preupting government money and giving it to people if that created new jobs why don't we give everybody a ton of money, print up a storm and everybody would have a job. obviously it doesn't work like this. megyn: let me ask you about this help, or however you want to phrase it bail out to local governments to prevent layoffs. are we talking about money to states that were irresponsible like california and so on that spent more than they could afford and now for the third time we will look to the federal taxpayers outside of their state boarders to bail them out of the red ink. >> reporter: yes this is exactly what it is.

this would go to states that overspent and over promised especially pensions or workers. california is a classic example. give them more money, will they reform the pension system? probably not. that's why i'm saying you're giving more money to the addict you're not weaning them off the government money drug. megyn: if the money tree is always there, why would you need to watch it. you can watch president obama's address right here on the fox news channel tomorrow notice at 7:00am eastern time. we'll have full team coverage from our political team in new york and washington. fox news alert now new calls for sreupblg lens at u.s. military bases with 9/11 just around the corner. military officials raising protection levels now for calls mostly going out to bases right here in the united states, the pentagon telling us this is all part of the preparations that are being made before the country marks ten years since the 9/11 attacks. we are also tracking breaking news overseas, first a flight

headed from pakistan to manchester, england is forced to land in turkey. shortly after this a second flight had to land in malaysia. more than 500 passengers making it out safely, and while airline officials say at least one of the landings was due to technical problems, local news outlets are saying threats were sent in to those airlines. trace gallagher has more live from l.a., trace. >> reporter: megyn we are being told the pakistani aviation authority the equivalent of the faa got the first threat, they ignored that threat. when the second threat came in the alarm bells went off. they believed there was a bomb on board the second plane that was in maylasian air space. the threat was so specific they said the bomb would explode in 3 hours and 20 minutes. the england bound jet was emergency landed in turkey, and passengers were taken off safely, the plane was screened, that plane has been given the all clear. we have just learned that in

malaysia that second plane also landed safely and it too has now been cleared, but the pakistani equivalent of the f.b.i. is now getting involved in this trying to find out exactly where those threats came from in the first place, megyn. megyn: thank you. we also have breaking news on a store row that unfolded on this broadcast yesterday. brand-new information about the man who marched into a nevada restaurant and opened fire on a group of customers including several members of the national guard. claudia cowan got out of a news conference in carson city nevada, what is the latest. >> reporter: new details are starting to emerge as the investigation unfolds and as we hear eyewitness accounts from customers who were inside this international house of pancakes yesterday morning when 32 #-year-old eduardo scencion skraoefpling as he was doing so apparently. they won't reveal exactly what he said, the statements were

enough to traumatize the survivors. we are hearing stories of heroism from inside the restaurant. brave people who stepped up to help out with the victims and help get customers, including a number of children out of harm's way, and we are now hearing stories about the four people who were murdered, including -- [no audio] megyn: my apologize to the viewers. we are losing claudia's satellite feed. we want to hear the rest of that report. that with us a big story we covered here yesterday. we will tray to get her feedback up and bring you the end of her report. we also want to tell you that upcoming we'll have a special "america live" investigation into the background and the possible motive of this nevada shooter. what he may have said, you heard claudia mention this seconds before pulling the trigger and targeting several uniformed

national guard members. we'll look into what his words may reveal about the true nature of his disturbing action. new controversy now over a now sacred symbol from the 9/11 terror attacks. we'll find out why a group of atheists are fighting to keep this cross, found in the rubble at ground zero out of the museum and memorial. and the east coast bracing for a new round of wet weather. some areas hardest hit by hurricane irene are now set to get slammed by the remnants of tropical storm lee. the new flooding threat, and it is a bad one just ahead. and a good samaritan punches through the windshield of a burning car to save the woman inside. she lived, but she is now under arrest. we'll tell you why. >> it took me about four or five punches and i was able to bust through the front windshield of the car and we were able to get it pulled out and drag her out. just one phillips' colon health probiotic cap a day

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megyn: this is a fox extreme weather alert, the situation going from bad to worst along some parts of the east coast. areas hit hardest by hurricane irene looking at a new round of flooding. janice dean has the update. >> reporter: the storm totals adding up, parts of virginia, pennsylvania, new jersey over six inches here, vermont, poor vermont close to five inches. we could get an additional three to six inches on top of that and the ground is saturated. there is nowhere for the water to go. let's zoom in on the radar. this is the remnants of what was lee combined with a frontal boundary that is not moving. we are hearing of road closures in and around the beltway, washington d.c., baltimore as rain continues to train over the same areas up towards upstate new york and vermont, and see in the maroon area here, that's

flash flood warnings. fooding imminent. several inches of rain in a very short period of time. the ground cannot handle this. and look at the precipitation that we are estimating over the next several days, megyn? anywhere from six to eight inches on top of the rain that we've already received, on top of the rain that we saw from irene. so unfortunately this is a bad situation made worse, and the tropics are hot right now. we have katia, maria and we also have a depression forming in the gulf of mexico. back to you. megyn: wow, janice, thank you. my next guest says in upstate new york they have gone tr trying to recover from irene back to preparation mode expecting emergency conditions. joining us now by phone is green county new york administrator shaun groden. thank you for being back with us. you took us through the aftermath of irene, now you say you've got to shift, you can't focus on irene recovery right now, you've got to go back to

emergency prep. what does that mean? >> that is correct. we've removed the pick up duty crews from the varying streets that were affected and repositioned all of our highway workers back to putting out cans, cones and block points at the area where typically we have flooding on storms, or snow melts, so basically we're back to where we were last tuesday and wednesday. we are not able to proactive lee pick up from the garbage, we are now going back to preparing for response. megyn: are you still seeing flooding? the flooding was so devastating. >> yes, it's been raining consistent will he for the last 24 to 36 hours. we don't believe we've reached our crest on the flood stages. we continue to monitor a storm that is in central new york that may swing east which would be very bad for us. megyn: the timing of this continue be worse in the wake of irene which really devastated the area. our viewers may remember the

town of prattsville that has been wiped out you say. >> prattsville is our hardest hit community. they have made arrangements this morning, they repositioned emergency response trailers to higher ground because they fully anticipate rising floodwaters. as of now they are holding their own. megyn: what are people doing? people who live in these houses in prattsville and the related areas? >> in the worst sections it's total abandonment. they are trying to reclaim as much personal property as they k. you hear the horror stories of the photo albums that have been lost that can never be replaced. at this point people don't care about couches and tv's they are trying to pick up family heirlooms and not having a lot of luck at it. megyn: i know uri deploying the national guard out in the area. what are they doing? >> the guard has been doing a lot of great work for us, everything from traffic control, they've brought in engineering operations to move stone and dirt. we've had some mudslides, and

they just -- they could selfmobilize and be self-contained, clear road systems. much of our problem here is we have a lot of wash out with asphalt road systems. we've canceled school for the whole week because we are concerned about safety on the roads and drivers going from hard surface asphalt to gravel. it's a whole new driving system. we are up in the mountains here and snow is not that far away. megyn: it really isn't. we are already in september and it could happen as early as october. >> by late october, november it's not unusual for us to be blowing snow. megyn: thank you so much. best of luck to you. >> thank you very much. megyn: wow. democratic leader nancy pelosi is angry today accusing republicans of not showing the president the respect he deserves. we'll show you what has her so upset. and a dangerous stunt goes horribly wrong for some teenage girls, and one 17-year-old pays an awful price. a scary lesson just ahead.

>> oh, my god, i'm on third avenue at the railroad traction, somebody just tried to jump on the train and severed her leg. she is awake, she is very, very, very pale. how old are you honey. >> 17. >> what is your name her name is anna. [ male announcer ] it's a fact:

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megyn: to some incredible home video just into "america live." the camera is rolling as a florida man breaks through the windshield of a burning car. look at this. saving the woman inside moments before her car is completely engulfed by flames. the real life hero says he only walked away with a few cuts and scrapes. as for the driver, she was taken away in handcuffs. trace gallagher has more live from l.a., trace. >> reporter: you look at that video, megyn and you ask yourself, what would you do in

that situation, right? this is the middle of the night in winter haven, florida, right between orlando and tampa. the neighbors hear a loud screech and a crash. they run outside to find what you're looking at there, a car had hit two other cars, it went up and off the road and then it flipped over. and flames begin shooting out. it wasn't quite that bad. the passenger was able to get out, right? but the driver was trapped. so keith ledger was outside, he's got no shirt, he's not no shoes and he realizes he's very short on time, so he begins punching at the windshield. listen. >> it took me about four or five pinches and i was able to bust through the front windshield of the car. and we were able to get it pulled out and drag her out. you don't really think about it, you just get out there and you do it. >> reporter: you just get out there and you do it, within 30 seconds that is what the car looked like. it was engulfed. keith ledger as you saw that bandage on his right hand, he suffered some scrapes, and some

minor cuts. the driver of course was pulled out alive, that is the good news but she was hauled away a short time later because the police said that she was driving under the influence. pretty lucky considering that video and what could have happen had the neighbors not been there megyn. megyn: it's such a contrast two of one person's grossly wee reckless actions and a hero's actions. we are learning about the possible price tag of president obama's new jobs plan. nancy pelosi is saying the reaction to the speech is disrespectful. on 9/11 stood a couple of steel tkpweurders, recommend tphapbtsz of the steel towers that stood in the shape of a cross. rescue workers and mourners came

for months to pray or sit beside this. now what will be part of the memorial at ground zero unless a group of atheist *s gets its way. one of those eight theists joins me live today. >> it looked like a cathedral. that's the best way to describe it. the whole top of the building was blown-out. there were seats and benches made out of steel. it was like an amphitheater, and inside of that were four crosses that stood straight up and down made out of steel. for sunsweet,

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megyn: fox news alert president obama preparing to unveil a high stakes jobs plan to america tomorrow night. we could hear more details on the proposal he will unveil in the white house press briefing set to get under any way moment now. you can see inside the white house, it's 1:30 almost eastern time. there is a growing controversy over what is not happening tomorrow night, namely an official gop response following the president's address to a joint session of congress. house minority leader nancy pelosi calling the absence of a response, quote, disrespectful. monica crowley is a fox news contributor and a radio talk show host. dan gerstein is president of gotham ghost writers. she says it's disrespectful.

she says where are the republicans in terms of weighing in on this. >> reporter: the republicans have weighed in on all of the president's past proposals on jobs, obama care and the rest of it. republicans have proposed and passed two major pieces of legislation, number one, the paul ryan budget for 2012, and number two, cut, cap and balance, which would have created jobs. megyn: why don't they get out there and talk about them. >> reporter: they have repeatedly talked about this only to be met by a stonewall by the other side. they will let the president have his time, propose nothing new tomorrow night and let it go off into the ether. megyn: let me ask you, dan is it me or is she criticizing the republicans for not criticizing the president? you know if they came out and gave a response it's not going to be, we agree. >> reporter: this is the perfect example of the gamesmanship that makes people hate washington.

and it happens on both sides. we are whining about a speech that someone is not giving from the democrats, whining from the republicans and the tea party about something this a labor leader said at a rally. the house is on fire and we are arguing about who left the dishes in the s*eupg. american people are desperate for real leadership, people to stand up and say we have a national jobs crisis in this country and these guys are continuing the same old gamesmanship and partisanship. megyn: why does she care? there is one thing for tv people to talk about those things, she is the house minority leader. >> reporter: i'm in never position to defend nancy pelosi. i never thought she should be speaker and she was the albatross around the president's neck since his first day in office. megyn: dan, jumping off the party boat. >> reporter: i've been off the party boat from day on on that one. megyn: normally when there is a joint session speech like this one there is a response. a joint session speech is very rare. the better question may be, is

the president disrespecting history by calling a joint session on a speech like this as opposed to -- >> reporter: doing it from the oval office or doing it from some other part of the white house. if he really considers the job crisis a crisis, and i think most of the american people do, then there were other venues he could have delivered the speech but he wanted a joint session of congress because he wanted the air time, he wanted the networks to clear their air time so that the american people could actually see what he was saying. the republicans are saying, look, you're using the platform of the presidency to basically give a campaign speech where you're going to propose no new ideas for this jobs crisis. megyn: i don't know if it's going to be no knew ideas. the leaks we are getting now. if you want to check it out online chris stirewalt did a good job on power play which is on foxnews.com. some of the items include immediate new spending on public works projects. new subsidized loan program for government projects. third bail out for local

governments to prevent local layoffs. he's talking about extending and expanding the payroll tax cuts, extending unemployment benefits. we are hearing more details to the eun of 3 an the tune of 3 to $5 billion of stimulus. >> reporter: there is nothing big, bold. megyn: the number is big. >> reporter: there is nothing new in there that will give the americans confidence that both sides are going to use a new track. the republicans are going back to bush economics. the democrats are on the margins but have not solved the jobs crisis. the american people are screaming for something different and they are not listening. >> reporter: all things you laid out that we are hearing from his speech from tomorrow night are all of the things that he has tried already. so massive stimulus spending. megyn: a lot of what he's tried already. >> reporter: so much of the initial nearly trillion dollars

stimulus was for transfer of payments foe government pay rolls continued in states and local communities. it has been tried. what the american people are saying, wait a minute you've blown through trillions of dollars. what is disrespectful to use nancy pelosi's word is to propose ever more spending on the track record. megyn: do you believe that this is to set up the narrative going forward when he runs against the republican, whoever it is, that the republicans are sort of a do nothing congress and a do nothing party? we've heard a little bit of that from the president this week. it was interesting to me that eric cantor and john boehner the two leaders in the gop and the house said can we sit down before your speech and talk about things we do agree on. >> reporter: a preemptive strike but it's not going to work, because the washington is fundamentally broken. the part son hatred is deeper than it's ever been. they will not agree on everything. the deficit reduction deal when there with us a gun to their head with a deadline they passed

the lowest denominator solution. megyn: they might have a del on free trade. >> reporter: when it comes to jobs they will not do anything big, sufficient to the problem, both sides are dug in. that is exactly what president obama will do. he's going to take it from the american people, we will hear from the republicans. megyn: that they tried to be cooperative. >> reporter: here is the only way that strategy works megyn and dan. if he were to inject something new in the speech that actually is something that the republicans support not merely the extension of the payroll tax holiday but something big and flashy like tax reform, loring all marginal tax rates in exchange for closing loopholes if he were to put that in and be unpredictable that would put the republicans in more than a box than going down the same road of what what he has tried over the last three years. don't under estimate him. >> reporter: it's a shame he's not doing that. that is something there is b bi-partisan support on and will likelynd up being on the table for the super committee. why not put it forward now. megyn: maybe he'll surprise us all.

dan, monica, thank you so much. we have a troubling story now about how some dangerous stunt went terribly wrong for some teenage girls. and one 17-year-old paid an awful price. i wapt to warn you this is disturbing. she was trying to climb aboard a moving train in colorado. she apparently slipped and fell onto the tractio tracks underneath the moving train. the chilling 911 call that saved her life was caught on tape. again we warn you this may be upsetting to some. we'll go right to trace on this. go ahead trace. >> reporter: it really is hard to listen to, megyn that's the part of this thing. this was a girl with three of her friends and they were jumping on this freight train trying to get back to fort collins to colorado state university where they go to school. one of the girls made it successfully on board the train and the second girl, 17-year-old ana bennenti slipped and fell. the person who saw all this was a nurse, an emergency medical

technician. listen to her on the phone with 9/11 how she handled the situation. play this. >> oh, my god, i'm on 3rd avenue at the railroad tracks, somebody just tried to jump on the train and severed her leg. she is awake, she is very, very, very, pale. how old are you honey? she's 17-years-old. what is your name? her name is anna. >> reporter: her friends again were trying to help her and the emergency room technicians, the nurse is trying to both talk to the dispatcher and control the scene. again, it's hard to listen to, but play the second part of th this. >> don't pick her up you guys. >> what part of her leg was amputated at the ankle, at the knee. >> one is mid thigh at the left side -- i'm sorry, i'm sorry, >> reporter: again that was the first time the girl had heard that she was have very bad

shape. she is now in stable condition. they did have to amputate both of her legs, megyn but the emt nurse is being praised as a hero, if she wasn't there and didn't witness this the authorities say it would be very unlikely that she would have survived the stunt that the girls tried on this train. megyn: i mean if we can get any good out of this. trace, it's a warning to other kids who apparently have tried this. the train was moving and they tried to jump onto it? >> reporter: oh, they do it all the time. i mean kids do this all the time. they jump on these trains and catch them from one place to the next. it happens all over the country, it happens all the time. years back we've done stories about this. these kids were going back to college. there was no sign by the way that any alcohol was involved in this. they were simply trying to hop on get to the next town. megyn: teenagers, everyone has been one, they do stupid things, and so often they could have deadly consequences. but kids get lucky. she did not get lucky, thankfully her life has been

preserved, but let it be a warning to other kids. trace, thank you. >> reporter: okay. megyn: new fallout today from a gun-running sting that cost a top federal official his job. we'll find out how an arizona man accused of supplying grenades to a mexican drug cartel is now a major part of this investigation. plus, new controversy over a now sacred symbol from the 9/11 terror attacks. we'll speak with a man from a group of atheists who are fighting to keep this cross out of the 9/11 memorial and museum. >> the search for god, where are you? and then it came. it came like a -- i don't know, it came like a sign from heaven. [ male announcer ] it's a fact:

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megyn: as the nation prepares to

mark ten years since the 9/11 terror attacks there is a growing controversy over some of the artifacts included in the new york city memorial and museum at ground zero. the so-called world trade center cross found up right in the wreckage days after the attack. it became an important symbol for the recovery workers. earlier this year it was lowered into the memorial. but an atheist group is suing to either have it removed or to get an atheist memorial at the memorial too. david silverman is president of american atheists the group that is suing. he joins me live via skype. thank you for being back on the program. >> megyn thanks for having me back. megyn: i respect your point of view but i think on something like this a lot of people are going to say, what are you doing? this is -- you're claiming that just having this thing in the museum the memorial is giving you headaches and dyspepsia and mental anguish and therefore it needs to go because it makes you feel uncomfortable. >> the main concern here megyn

is equality. 9/11 was not a christian only event, it was an american event and it affected everybody. and it didn't affect the christians more than it affected the atheists or the jews or the muslims. placing a religious vine, and that's what this is a religious icon inside the public memorial with public money is illegal, and we're only seeking equal representation. megyn: let me ask you. i think you might actually have a point if they built this memorial and they brought in some sort of religious display to make a place for people to pray and they only represented one group. but that's not what happened here. this was a cross that was made out after 20-foot steel girders that was a remnant of the trade towers, and it's being included as a historical piece of what happened on 9/11. >> that's where you're incorrect. it's being included as a religious piece of what happened on 9/11. they took a cross -- and receipt building was made out of i beams, there were many that survived, and there are many

available on the internet. they took one, they adjusted it, they straightened it, they cleaned it up, they mounted it, they carved jesus all over it, they made it into a vine in front of a church for years, and then they installed it in a religious -- megyn: not the government, the government didn't do that, the ground zero workers did that and mourners did that so it became a part of the history which is why a museum wants to include it. >> it became a religious icon. and just because they wanted to be a religious icon doesn't mean they get to break the law witness. even if they really want to they do not get to declare that only christianity gets a place in the memorial and that is exactly what they are doing. megyn: what does only christianity just happen to have a memorial, a makeshift memorial on the site? i mean that's -- if there had been a menorah that had been a makeshift memorial they'd include that. if there had been star and

crescent they would have included that. it just so happens there was a steel girder that looked like a cross and it became a place where people prayed and reflected. >> on public property everybody gets equal representation and that's what we are striving for. megyn: you're not really answering my point. it was something in a just happened after the 9/11 attacks. >> no it did not just happen. megyn: and regular old sis sense made it into something that they wanted to be next to and now the museum for secular purposes the museum doesn't want to make people pray, they want to memorialize something that happened after 9/11. >> it was installed in a religious service. it was installed by the government entities in a religious service by a priest. they consecrated the ground, megyn, they made this a religious, working vine in th shrine in the memorial. they made a shrine in the memorial by a priest with the help of the federal government. it's illegal and it should not

be allowed. and that's why we are fighting for equality here. that's all we are looking for. we are looking for equality and nothing more. megyn: let me ask you about the claims. some of these lawsuits have been thorn out because physical injure wasn't alleged and you needed to get past emotional injure you had to claim some sort of physical injure. now i think as a result your group is claiming as i mentioned you've been caused headaches, dyspepsia, heart burns and other physical injuries. i mean who, who specifically, who specifically has had headaches and dyspepsia as a result of this. >> we've had three individual plaintiffs who are claiming this. i'm not going to speak for how they feel or speak to the legal terms. megyn: your papers do. >> right, it's owl there and i'm not an attorney and i'm not going to speak to exactly what they feel. i will say that it's very, very distressing for the government to actually ignore 16% of the population and actually break its own laws just to placate the

christian right. it's a wrong thing, and it makes people upset and it gives people stress and it's wrong. and that's why we're fighting. megyn: you know, david i appreciate you coming on the program but i have to say, you in this argument are also making people upset, and a lot of people in this country do believe in god, and went down to 9/11 to ground zero after 9/11 to -- to pay their respects. >> i know that. megyn: this isn't for them about rehreurbgs it's just about remembering, same as we saw quilts go up here in new york, same as we saw the placards go up in downtown manhattan memorializing the people, it just became a part of history, and there is some value in going back and reliving that piece of the history. i'll give you the last word, sir. >> there is also some value in protecting the laws that we are supposed to be protecting, and that we're supposed to be observing. 9/11 was an attack on american equality, it was an attack on american neutrality and freedom of religion, that's what it was. it wasn't about christianity and

that's what we're protecting, and yes we are upsetting some people and we know that. this is a terrible publicity move for american eight theists but a necessary move to protect the separation of church and state. megyn: understood, david thank you for being here. >> thank you very much for having me on. anyone who wants more information, atheists.org. megyn: we have that interest view as a lead in to the next segment. there is a powerful documentary about the cross in the towers, and the man who produced that documentary wanted to be heard today about 4 lawsuit, he is here live with me immediately after this break. >> it looked like a cathedral is the best way to describe it. the whole top of the building was blown-out. there were seats, and benches made out of steel. it was like an amphitheater. and inside of that were four crosses that stood straight up and down made out of steel. to keep in balance after 50,

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♪ megyn: picking up where we left off, to understand why this lawsuit by the atheists has attracted such attention you need to know the whole story of this cross. there is a powerful documentary called the cross and the towers, here is a brief clip. >> we dug our way down and there was a cavern of steel and rubble, and it was hallowed out inside the ground. >> it looked like a cathedral is the best way to describe it. the whole top of the building was blown-out and there were seats and benches made out of steel. it was like an april pa theater. amphitheater. and inside of that were four crosses that stood straight up

and down made out of steel. >> people would come to this place, they would spray paint on the side, god opens house there. was hope in the midst of all of that decay. in all that of darkness god's light had shown through. people that day no matter where they were, they stopped, standing strong and tall. megyn: scott perkins produced this documentary and he joins me now. scott, thanks so much for being here. you heard david silverman talk about how he believes this has become a shrine installed in the museum, which if true may cause problems legally. how do you respond to that? >> you know, megyn i think really the fact of the matter is, as you stated, you know, the crosses were part of the trade centers. they were part of our history.

no one in particular made them, and because it provided a sense of hope in the midst of devastation during that time was exactly what it was. and so i mean that is the story of the cross and the towers. megyn: just take us through what happened with respect to the cross after 9/11 at ground zero. >> sure. on the second day of recovery, when the heros of 9/11, those -- many of those who went in when many were coming out, and they were digging through the rubble to try and find survivors they came upon this cavern that was underneath the rubble. and then underneath there they found these four crosses that stood up right in the ground and they happened to be in the shape of a cross. and so this place within the zone became what they referred to as god's house.

they called it an amphitheater. and it was really a place where people came while they were doing recovery, they would take a break, they would come in there, you know, it was such a war zone, and it was a place where people would come to be ministered too, both christian and nonchristian. megyn: and now you are seeking to memorialize that at least in your documentary, it's called the cross and the towers. i recommend people check it out. scott my thanks to you so much for coming on. a breaking news situation on the tragedy in nevada. new information about the gunman and whether he was targeting the military next. w [ groans ] you okay?

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the only medicare supplement plans endorsed by aarp. when they told me these plans were endorsed by aarp... i had only one thing to say... sign me up. call the number on your screen now... and find out about an aarp medicare supplement insurance plan. you'll get this free information kit... and guide to understanding medicare, to help you choose the plan that's right for you. as with all medicare supplement plans, you can keep your own doctor and hospital that acpts medicare, get help paying for what medicare doesn't... and save up to thousands of dollars. call this toll-free number now. megyn: fox news alert. we are learning more about the man who slaughtered at least four innocent people eating brach fast at an i hop in nevada. welcome everyone i'm megyn kelly. eduardo sencion walked into i

hop opening fire with an ac47. four people were shot and killed before the gunman turned the gun on himself. his family says he has a history of mental illness and police are asking questions about how he was able to purchase high-powered weapons. >> 9111, what is the nature of your emergency. >> in ihop there is a shooting going on. >> shooting where? >> in the ihop. >> in the ihop. >> in the ihop. automatic weapons. ihop. get there right now, automatic weapons. >> how many inside. >> we saw one guy going in. now he's coming back out with a gun. he's shooting people in the parking lot. he has an automatic weapon. ryan get out of there. ryan, move. he's shooting at us now. >> okay, all right. >> he's shooting at us. he has an automatic weapon. he's shooting anybody he's

wearing a red shirt. >> red shirt and long johns? >> he was sitting in a restaurant. >> we have officers on the way. >> we don't know if anybody is injured. he came out of the ihop. he was walking back behind locals barbecue after he did a shooting in there. i don't know what is going on. i'm not going to go outside and look. >> i don't want you to do that. megyn: trace gallagher has more live in our west coast newsroom with the new details in 4 this case. trace that is chilling. >> reporter: we believe that is the owner of the locals barbecue place that gave so many chilling accounts yesterday of exactly what happened. the motive in this case still remains very unclear, but we're finding a lot more troubling information about exactly what happened inside that international house of pancakes. one of the people inside was a woman named ethlyne mcdonald. she says the shooter came into the restaurant, he walked to the back, he began shooting and then he narrowed his aim toward those

five national guard members. the sheriff a short time ago was asked if those guard members were targeted. here is what he said. >> there's been quite the discussion about that, along that path inside the restaurant virtually an equal number of military persons and civilians were targeted. there is no clear distinction of what his intended target was. >> reporter: you heard the sheriff say quite the discussion, well he's already on record as saying when you have five of the victims as national guard members, that would seem to be, an i'm quoting here, the shooter's priority. we also know the shooter was yelling something inside that restaurant, megyn, as he opened fire. now there is no audio recording in the restaurant so they are going by eyewitness accounts. here is what the sheriff said about that. listen. >> i cannot elaborate on his comments today. as we said yesterday there were some statements uttered out.

those witnesses that relayed that information to us, they were very severely traumatized by it. i cannot confirm that they have been finally interviewed yet. >> reporter: but keep in mind here is what we've learned. that international house of pancakes is within a few miles of seven different military installations. we're talking about two national guard depots, as well as recruiting centers for every branch of the military. this i hop according to employees and people who know it is very popular with members of the military. as for that man, edward sencion he worked at a family market. he struggled with mental problems for years. the police had him committed in 2000 to a mental hospital. now the big question the sheriff has yet to answer is how does this guy get a hold with what could be automatic, likely semi automatic weapons, three of them in all, megyn. megyn: unbelievable. trace, thank you. we've also got fox news alert on the wildfires that are burning

out of control in texas. crews now just starting to gain ground on some of the fires burning across that state. high winds, dry conditions, fanning the flames in the past few days from the west and east to the panhandle and south. fire danger has been lurking in every corner of the state just about. the levels very high around the borders. the more central you go it's very high and the further inland the worst it gets. extreme fire danger right around some of the state's largest cities. kris gutierrez has an update from cedar creek texas,. >> reporter: hi there, megyn members of texas task force one which is an elite search an search and rescue team are combing through burnt homes like the one you see behind me looking for potential victims. the good news is that the fire that swept through here is 30% contained in large part because the winds have really died down. this fire alone has already proven to be one of the most devastating in texas history. 785 homes have been consumed by this fire.

you can see the helicopters and hear it going above us because they are fighting this for as we speak. the family that lived here was out of town over the holiday weekend when this fire started. when they returned this is what they found. neighbors tell me that they saw the fire coming this way, they grabbed water hoses to try and save what they could, but they just didn't have enough time. listen here. >> i kind of ran from the backyard, i had to hoses hooked up there, and started spray on this side before we really saw the big, big flames come up. we sprayed a little bit. then i looked down here and i saw some fire in the grass by that bush right there, and i sprayed it. and then that's when this fire got so big that, you know, again we decided it was time to leave. >> reporter: that man tells me he saw a wall of flames topping those trees behind me, he says he saw it coming closer to his house but miraculously, take a look, megyn his home is virtually untouched.

megyn: wow, cris, thank you. we've got breaking news this afternoon on a federal investigation that already cost the jobs of some top law enforcement officials. operation fast and furious was a program through which the feds, trying to track down some high ranking leaders in mexican drug cartels wound up allowing guns to fall into the hands of some very dangerous criminals down in mexico. today there appears to be insult to injury as we learn that the department of justice also apparently released a dangerous explosives runner after the guy had already been arrested and was in custody. why? congressman darrell issa is a republican from california. he chairs the house committee on oversight and government reform which is looking into exactly that question. sir, thank you so much for being here. our viewers definitely going to be as steeped in this story as you are. in a nutshell your concern is what, doj had this dangerous guy handed to it by atf, and doj

left the guy go and now you're trying to figure out why they did that? >> we now see that he will in fact be brought to justice, which is the good part of the story. megyn: he's ultimately been apprehended. there were months there where he wasn't. >> absolutely. and this is part of a pattern we saw in fast and furious, and we saw in the southwest, which was atf wanted to grab the people at the first point in which they could get a legitimate prosecution and stop the guns, or in this case grenade from being trafficked. unfortunately the u.s. attorney's office, department of justice wanted to wait and wait and wait, and unfortunately they waited until precursors, basically bomb-making materials had already crossed into mexico and the mexicans had failed to intervene. that is not acceptable, it's what we need to make sure never happens again. megyn: but is this a case of you trying to exercise 20-250 hind sight? because as i understand it the justice department is saying,

yes, atf arrested this guy who with us a very dangerous guy by all accounts, up to his neck in grenades and manufacturing explosive devices, supplying weapons to a cartel, here he is not a good guy. they get him, have him in custody, atf according to the reports was horrified at the thought of releasing him and practically begged the senior prosecutor in doj for permission to arrest him and they wanted him to stay in custody and doj is now saying we wanted to continue surveillance, we do this in some cases where you got the guy, but then you let him go so you can follow him and maybe he brings you to somebody more important on the totem pole. >> i'm perfectly willing to have justice do their job, including sometimes letting somebody go that you follow, but you don't let guns walk, you don't let explosives walk, that is what is wrong with what went on in fast and furious, it's what is wrong in this whole grenade caper. you cannot allow these dangerous

assets to fall into the wrong hands and that's what atf has been fighting for is to say, we stopped the guns from walking, we stop explosives from being used because they are moved. that's an important first step, yes it's good to rack up the higher rankings but you can't do it on the backs of dead americans or mexicans. megyn: this prosecutor, i think it's the same guy, dennis burke, he's the u.s. attorney in arizona he's been ousted from his position. does that put an end to it? is it says solved, problem done? >> well, you know, whenever you talk about human mistakes you have to say, what was in the system that allowed that human mistake to go on and perpetuate itself in our committee is the government reform committee. we are about making sure that there is a system to prevent this in the future. when we have assurances that system is in place then our job is done. megyn: there is also questions that the doj is raising about atf. they are -- they are not just trying to justify their own behavior by saying hey we wanted

to continue surveillance. they said it was the atf to blame her. they conducted a sting -rpbgs thesting, they tracked this guy, they gave him parts he was supposed to take to mexico. atf lost the guy and that's where all the trouble started. it's like the two agencies of the federal government doing this to each other. >> megyn this is one of these things where the facts matter. atf wanted to arrest him before he crossed the border. doj wanted him to be able to cross the border. he was lost on the mexican side of the border which is outside of the atf's jurisdiction. he should never have been allowed to traffic across the united states border into mexico. it shouldn't have happened. that's what was wrong with this operation, the doj let explosives walk. megyn: it's incredible when you get a behind the scenes view of what is going on particularly on the southern border sometimes. thank you so much for being here. >> thank you megyn. megyn: employees at an ohio

minimart winning $99 million after pooling their money for lottery tickets. whoo-hoo. see how they may lose some of that cash to someone who sat on the side lines that now wants a piece of it. you have to empty your pockets, open your bags and take off your shoes alternate the airport. we are all used to it now. there may soon be a big change to the way you are screened, and you may like it. stay tuned. there are three candidates they say to watch in tonight's gop debate, but is it too late for another contender to throw his hat in the ring? >> we need -- these people were start to be in this race. i think it's borderline irresponsible. if you can win the presidency and take these people down you need to get in the race, even if i don't like these people, like jeb bush, if you can beat them, get in the race. angela ] endless shrimp is our most popular promotion at red lobster.

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of tropical storm maria now 1200 miles west of the cape verde islands and moving west with top sustained winds of 50 miles an hour. forecasters say it could strengthen within the next 48 hours possibly becoming a hurricane. it is the 13th named storm of this year's season. meantime hurricane katia is a category one and is not expected to hit land. well the first of three upcoming critical republican debates kicks off in a few hours and here is some of what to watch for tonight. rick perry squaring off against his opponents on the national stage for the first time. mitt romney looking to regain some steam after losing the top spot to perry in most recent polls and michelle bachmann desperately trying to stay relevant as she slips lower and lower in those same polls. joining me now for some analysis, brit hume.

good to see you back what is going on with michelle bachmann? a month ago when she won the iowa stu poll she was all the darling in polls and media circles. and now, now she has slipped to fourth place among the republicans in the new poll by "the washington post," and among very conservative republicans her support has gone from 21% to 1%. >> reporter: well basically what happened to her is rick perry happened to her. he's got many of the same qualities that she has, and appeals to many of the same voters, and she was flavor of the month, now he's flavor of the month. she can recover possibly. everything depends on him. this upcoming stretch here that you just mentioned, megyn is important to all these candidates but it is especially important obviously to perry. this is his debut. we've seen him in bits and pieces, we've heard about some of the thins he's said i things

he's said in his book. we've seen glimpses of him but no real extended exposure to the guy. it's not clear how he's going to come off. there's been an effort to portray him as a knuckle dragger, someone far off the mainstream that he continue be elected. i think that image is probably exaggerated. but he has some work to do. megyn: you mention flavor of the month. it's true, sometimes you go to the frozen yogurt store and you love the german chocolate cake, then a month passes and you can't stand that and you want to get back too the tutti frutti. does it all come down to his performance in the next three debates. >> reporter: i don't think it all comes down to that but a lot comes down to that. rick perry i saw him on our channel yesterday morning, for example an was being interviewed about the fires that are raging in texas, and the man who came to the television screen, i was watching with particular interest because we haven't seen

much of him, was calm, attractive, well-spoken, sensible and serious. if he comes through the television screen that way in these upcoming appearances he will go some distance toward overcoming this image that people may have of him as being somebody who is prone to some pretty extreme views. a man who suggested that he thinks social security is a ponzi scheme, in many ways social security can be like end to a ponzi scheme but it's such a sick rid institution you have to be careful what you say about it. he's said other things as well about the fed chairman, for example that we've all heard about that are the kind of statements that tend to worry and frighten independents and independents will decide this election. they decided it in favor of president obama in 2008 and they decided it massively in favor of the republicans two years later. megyn: but they only get it if the guy gets the nomination from the republican party. and there is a real question about whether perry is going to wind up with that, romney is

going to wind up with that, somebody else is going to wind up for that. for the purposes of this discussion let's talk about perry and romney the two frontrunners. can romney get past perry with a republican base. >> reporter: sure i -- megyn: and get this nomination. >> reporter: i think romney has a kind of last man standing strategy. he has always struck me east was preparing for this race and even since it's been underway to be a man building an ark, raising lots of money, building a big nation-wide campaign organization, being very careful about the positions he's taken, trying very hard not to make any mistakes. he seems to be a man aware that he might encounter some heavy seas and he has now encounter the heavy seas in terms of perry who has shot past him in the polling. opinions can shift very quickly and romney has maintained a steady base of support. i think most republicans would find him acceptable. i think a lot of independents would find him acceptable. remember, republicans are going

to have their eyes on the broader electio election threat this time. i think republicans are so eager to get barack obama out of the white house and they know they have a real shot of doing that unless things really change in the count rein the next year that they will be very concerned about how the rest of the election threat feels about their potential nominee. they want to win. megyn: let me ask you something, something that we are seeing more and more on the news is mention of these candidates religion, religious beliefs, their prayer practices, in particular perry. fox news conducted a poll that we just got an advance release on and i wanted to ask you about it. folks were asked, what is more likely to be the explanation for the origin of human life on earth. 45% say the biblical account. 21% say evolution. and 27% say both are true. how big if at all of a factor is this discussion likely to be among these candidates on the gop side in particular? >> reporter: well, that poll

gives you an idea a little bit about where america is on issues that relate to that, to matters of faith. a great many people believe in the bible. rick perry believes in the bible. he's a evangelical christian. and i think that that may sound to the people who inhabit the east flanks and the west flanks of the country to be exotic. but to most americans that is not the case. megyn: we will hear more tonight on a go forward basis including a fox news debate on 9-22. a major update in the amanda knox trial right after this break. [ male announcer ] it's a fact:

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megyn: fox news alert we are getting reports of a bomb threat at a high school in san clemente, california. the news helicopters have arrived on the scene.

trace gallagher has been watching this from the breaking news desk. >> reporter: san clemente is in orange county north of san diego. it has a 3200 population here. this is a weird one. we are hearing reports that a marine aeu partisan lee who was aewho was awol, they found in his journal saying he had left an incendiary device at san clemente high school. they have evacuated all of the students to the football stadium on campus. they are not letting parents go on campus, they are not letting anybody in or off that campus right now until they check this entire report out. again, it was a diary entry from what we believe to be a marine at camp pendleton who is now awol who said he left an incendiary device at the high school. the school taking this very

seriously right now. we'll keep you up to speed on this. any more information we'll bring it to you. megyn: do we know if this was something they identified prior to this. this threat that was written down? >> reporter: it's all very unclear. i mean all we're getting right now. these are reports from our network affiliate kabc. first it came across as a naval officer, then they were saying no, it was a marine at camp pendleton marine base, and they found in his journal entry something about leaving an incendiary device at san clemente high school. san clemente high school is probably 15 or 16 miles up the road from camp pendleton, maybe 20 miles at the farthest. san clemente of course the famous western white house for richard nixon, it's right on the ocean, it's a very quaint little beach community. and now you've got firetrucks, and bomb squad and all these people trying to clear this area. but clearly they are taking this thing extraordinarily seriously. we are on the phone to police right now trying to get more information. megyn: you know what is interesting if you see the wide

shot they've obviously moved all the kids to the football field but the football field is right next to the school. i don't know, maybe they've got more information than we know on what type of incendiary device they suspect it could be, if one at all. maybe this is all being done out of an abundance of caution. just as you look at the grand scheme of things, the children are not that far away from the school right now. >> reporter: no, and that's probably a big key part of this thing is they probably have specifics on where. i mean if this thing truly does exist, where this would be. we are going to try and find that out and get back to you, megyn. megyn: thinks the first week of school for a lot of kids. what an event, trace, thank you. we've still got the breaking news on amanda knox we'll move that right after this break for you. we wanted to bring you that breaking news. we'll have that three minutes away. president obama is set to unveil his plan to jump start hiring and the economy. some critics say his timing will doom the plan to fail. we'll show you why when we come back. and good news for air travelers,

a big change in the security line may make it a whole lot easier to get on the plane and keep on your clothes. stay tuned. so i was the guy whr going to have the heart attack. i thought i was invincible. i'm on an aspirin regimen now because i never want to feel that helplessness again. [ male announcer ] be sure to talk to your doctor before you begin an aspirin regimen. talk to your doctor, and take care of what you have to take care of. when i got my medicare card, i realized i needed an aarp...

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american appealing a murder conviction in italy. a judge in the amanda knox case denying the prosecution's request for new dnaosecution's toasting. she is contesting the murder of her british roommate in 2007. greg palkot is live in london with an update. stand by. we're trying to get the satellite feed working. sorry folks we had technical problems today. i see him. i see him. i don't hear him. just fyi, what we're trying to get his satellite feed working, what happened was amanda knox won a victory when the court appointed two independent experts to review the dna evidence that had been used to convict her. the independent experts concluded it was faulty, not reliable. this is in context of an appeal where the appeal court is taking fresh look at all the evidence and can throw out the conviction if they want to. now the prosecution wanted its turn, saying we want a

review of the dna evidence. greg palkot, what did the court say? >> reporter: meagan -- megyn, today's activities at the appeals case concerning convicted killer, amanda knox was seen as a plus for her. her conviction was obtained as the prosecution has claimed that american amanda knox's dna was found on the knife used to kill meredith kercher. other dna was found on the bra clapse, claimed to have been, from knox's boyfriend, rafael sollecito. this summer of appeals they have used a battery of experts to knock the validity of that dna evidence down. they used two more today. they have said that it was inadmissible. they said it was contaminated. that's why the prosecution today asked for another test

of the dna. and the judge, well the judge said, we would not accept that. that was seen as a positive for amanda knox's case. now the closing arguments start on friday, september 23rd. the earliest possible time for a verdict would be the following thursday, september 29th. the general consensus according to the people who we are, speaking to at the courtroom is that the conviction could be overturned but another appeal is possible and there are some questions about that. back to you. megyn: greg, thank you. sorry about that folks. well the president gearing up for his address to a joint session of congress tomorrow night where he will lay out his plan for the economy and job creation but is the president's timing all wrong for a speech like that? and is it really pointless at this point? brit hume, our fox news senior political analyst said this on last night's special report. >> neither president obama or his advisers seem to

understand it but he is far past the point where he can change his political standing by making proposals and speeches. sooner or later every president's standing comes to depend on results and this president is in desperate need of better results. megyn: joining me now, chris plante, radio host of the chris plante show and christopher hahn, former aide to senator chuck schumer. thanks for being back with us. chris, let me start with you, what do you think of brit's point, it is too late for this kind of talk? >> i don't think it is too late. the president has great deal of personal popularity. people are concerned about the direction he is taking this country in. he has to be very bold and very specific what he proposes tomorrow night because the american people are saying, okay being mr. president, show us what you got. put it out there. this is his moment. he has got to go big or he has got to go home. megyn: he said that was his moment at the democratic nominating convention at 2008. he says that was his moment. >> he won that moment. this is another moment.

megyn: i want to focus specifically what brit said and i go specifically to you, chris, sooner or later every president's standing comes down to depending on results. his point is, it doesn't really matter what the president says. he could go big as christopher wants him to. what he needs is results. if he doesn't manage that, then this is all, you know, a sideshow. >> well brit's right of course as usual. and what we all need is results. i hear sort of the sadness in chris's voice there, chris hahn's voice. this is getting really tough to defend. i'm feeling for you here, buddy. yeah, results would be nice. the results are in the numbers. republicans are still over here trying to deal with a math problem. the reality the speech is about two things, first is one job and that is barack obama's job. secondly he will go in perfectly predictably offer the same old stuff and pick a fight with the republicans. present something that he knows won't get through congress, so he can blame them again.

i mean, i don't know how many fumes times we need to see this commercial before it comes out. it is not even a movie. a very short film. megyn: that is another point brit made last night. mr. obama may plan to hit the republicans over the head for not passing his initiatives. that is classic case dealing with the politics of his problem rather than the problem itself. >> that's right. megyn: it is too late for that too. your thoughts, chris? >> i don't think it is too late to deal with the politics or the problem. and i also think this president still has the support of about 40% of this country. i do believe there will be a third party candidate from the right. most likely ron paul in next year's election. i think that this president needs to make specific proposals in specific congressional districts. perhaps break off some of the republicans from binding block of no and bring them into the fray to paso solutions. we need real things going on. we need to pass projects, infrastructure projects. things that need to be fixed here in the metropolitan area, arc project put aside

bus of financial reasons in the state of new jersey. i think the president should fund that fully from federal level and ask for support from chris christie to help him with that. megyn: sound like he will get some cooperation with boehner and cantor in the house, some of the infrastructure stuff sounds okay to us. couple other points but they will not go for 500 billion or $300 billion in stimulus spending i don't think, chris. that is conventional wisdom. >> more proposals along the same lines. this is about paying off the unions and if it is about jobs, there is an old adage about this, let's give them all spoons instead of shovels. all the big projects. barack obama himself said he found out much too late there are no such thing as shovel-ready jobs. they're reintroducing the shovel-ready jobs because they're so out of ideas they're circling back to old ideas. megyn: one idea they clearly have is grandeur, right? giving the address before a joint session of congress. that has some pomp and circumstance attached to it,

christopher. >> yep. megyn: while they're telling us how that they will do and nancy pelosi complain you republicans don't give a response like you do at statist union, while they're doing that, the press office will tell us it will not be the be all, end all speech. they're trying to downplay the expectations. >> yee. megyn: which the president built up wait until i'm back from vacation. is this big or is not big? >> it better be big, megyn. that's all i have to say. they're right to lower expectations. you want to underpromise and overdeliver. megyn: shouldn't do it in front of a joint session of congress, should? >> if you do it in front of a joint session of congress you better have something important to say. the american people will have all ears on this, and all eyes on this. what the president says tomorrow night will determine for a large part his future as president of the united states and whether or not he is even viable next year as presidential candidate. this is the start of next year. i know we're not supposed to talk about politics. chris, that's what we do. this is a political, a

political moment for the president, a very important one. probably most important one that he will have for the rest of the year. megyn: really? do you think so? that is interesting. chris, do you agree with that. >> another seminal speech from barack obama. it is another speech. it is not a plan. megyn: do you agree this is a seminal moment in his re-election battle? >> well, right, the 5th launch of his re-election. this is all about re-election. about his job. listen the congressional budget office will have to once again reiterate they can't score a speech. they can't break down the math from a speech. the president has to plenty something. at this point, honestly, chris, hang on, at this point barack obama's speech filing about the budget and jobs becoming like charlie brown teachers. more of the same. nobody is hearing it anymore. >> sounds like first day of school with the cut hair and tie. look at you. megyn: it is over when we start mocking personal appearances. >> i'm not mocking. megyn: thank you. >> thank you. >> who am i to mock

appearance. megyn: federal agent raiding one of the most famous musical instrument-makers in the world. just ahead why the ceo of this company says he is only guilty of being a republican. plus a man who is part of an office lottery pool for eight years, misses work the day the group wins. now he is suing. but does he have a case? in kelly's court, next. >> i think that he could have sent his money in. he probably in contact with somebody that he worked with that he could have give the money to stay on top of it. >> i feel for him but if he didn't put into it i don't think you should get anything at all.

megyn: well kelly's court is back in session. on the docket today, cold hard cash for a guy who was not in it to win it. 22 employees at a cabinet company in jefferson, ohio, turning in a dollar and a dream into a $99 million lottery jackpot. 99 million beans.

the problem is, one of their coworkers, 39-year-old edward hairston. he took part in the office pool with his coworkers every day for eight years but he missed work that day. now hairston claims he is entitled to a cut of the loot by default, suggesting there was some sort of implicit agreement they cut him in on the deal. so he is suing and believe it or not a judge just set aside $2 million bucks in case he wins. so, does he have a chance? let's ask our panel. former prosecutor, jonna spilbor and defense attorney, david wolff. the intentions when you look at the case say you weren't there, you don't get the dough. there is more to the story, david. >> absolutely, megyn. in a legal sense he has an uphill battle, there is no doubt about that. i advise people to make a contract in these situations so you're covered if you're out ill like he was. that didn't happen in this case. however for eight years, megyn, this is equitable

issue. for eight years they were all for one, one for all. they were the 22 musketeers. when this man suffers a very serious back injury and misses several months of work, they throw him overboard literally say, uh-uh, you're out of luck, pal, you're out of luck. no way. when this go to a jury, juries tend to eat up equitable issues like. they like fairness. megyn: and the other 22 have enough dough they can share with this guy. the thing that caught my interest was his lawyer says the groups unwritten policy for year was to cover colleagues unable to make the payment because of illness, holiday or other reasons. he was out three months on disability. they say the monthly dues would come from an account containing past winnings or smaller amounts. an account to which he presumably did contribute over those eight years. and they say that on one occasion, the group made payments on behalf of a missing member for five months while she was on medical leave. >> right. megyn: so that makes me think, you know what?

maybe the guy has a point? >> he might have, like david said, an equitable argument. let me counter this. david, i'm going to hire you if i ever let my insurance policy lapse because it is same premise. megyn: hire me. i think i made a better argument. >> you're too busy. if you have an insurance policy for 10 years and something happens and you forget to pay your bill and then you have an accident, guess what? tough luck. and in this case, you got to be in it to win it and he wasn't in it. and they didn't have any sort of written contract. that probably would have saved the day for him. but i think he really has an uphill battle. megyn: the other thing, david, this is a point against your fake client. is that they say the other side, the 20 two winners, real winners say, he didn't play for three months and he was invited to contribute money and stay in the pool via e-mail and he chose not to. he didn't respond. now the plaintiff is saying, well that e-mail was sent to a company e-mail address that i couldn't access since

i was on at home on disability. >> and not only, that, megyn. you ever had a back injury? the last thing you're doing is writing e-mails and taking care of stuff like this. megyn: really? with all the time you have? >> i had one before, megyn, i couldn't get out of bed it was so painful. look the judge set aside a number of dollars. x-amount of money in escrow account and she has done that to feel because she thinks there is merit in the case. whether or not a written contract, a lost times oral contracts will be enough in equitable sense for a judge and jury to consider --. megyn: i don't know. there is long history of judges throwing these kind of cases out. there was a case in ohio where these ohio city workers sued their colleagues who won 207 million because they weren't at work to contribute to the pool. >> right. megyn: the judge dismissed that lawsuit saying, you weren't there. >> you weren't there. again it is essentially a contract. he did not contribute to the money that won that lottery

ticket. if he did he wouldn't be out of luck. megyn: when they bought the winning lottery ticket out of pool of prior winnings and some of his money was in that. >> now we have to prove that. we have to prove how much of thinks money was in there maybe his money for losing lotto three months earlier. it is a proof problem basically what it is. he made the right decision by holding some money in a bayance. look you guys, you know how much if it cost contributed to him, cost them equally? cost them $200,000 each out of $4.5 million pot. come on, karma baby. that's what i tell. megyn: be nice guys. quickly david. >> if they establish that chain of custody like you said that is actually coming from the money that was partially his, forget about it. megyn: much better case. >> this would be equitable case. they have to settle somehow. megyn: want to tell viewers members of these folks yet to receive their money, several already quit their jobs. now they're only going to

get $1.8 million. a lot of dough. i don't know if you can quit your job and never work again on that. >> not today. megyn: a little bit of financial advice. you have to pay taxes. thank you. one final word for our viewers. you have to be in it to win it. unless he can she agreement to keep him in the pool no matter how long his absence or his money was in the pool of dough used to buy the winning ticket. he is going to lose. it is sad. but it is the right result. more in a moment.

megyn: new fallout after a federal raid targeted the iconic gibson guitar company. the ceo is now suggesting that the whole thing may have been politically motivated because he says he gives money to gop candidates. senior national correspondent john roberts is live from the gibson

guitar factory in nashville. john, why did the feds do this? >> reporter: well you got to ask the federal government. we have and they haven't come up with a reason yet. hear is the center of this controversy. it is a piece of indian rosewood. manufactured in the a shape after fret board blank. you're probably more used to seeing it in this form here, put on the guitar that becomes the part that the player plays. hand that to kirby. thanks very much. what it is interesting that the government says it is illegal to import in the united states. they seized a million dollars worth from gibson a month ago. here's the catch if it were to be finished in this form by indian workers it would be legal to export. illegal to export, legal to export. gibson's ceo is saying that could potentially cost american jobs. essentially, the government is saying, we think that this work, this work here should be done by people overseas, not here in america. the 510 people who work at this plant, 40 of them are the ones who do this.

henry jeskowiz says he has no idea why his company is being targeted. >> we've been pretty low-key. we're a guitar company. we've been manufacturing guitars. we've been involved in the environmental movement. we've been trying to do the right things in terms of sourcing. we really don't know why they're picking on us. >> here's the real catch about all of this. this stuff is the same type of wood that is used by literally every guitar manufacturer across the country, yet none of them have been targeted. the question is why is gibson being targeted? there was action in 2009 where they had suspect wood from madagascar. maybe that put them on the radar screen. but other people are suggesting as you brought up because henry is a republican who has contributed to republican candidates, also contributed to democrats as well, that perhaps he is in the crosshairs. also one of the workers brought up, this is a nonunion plant here in nashville megyn. megyn: i don't know whether it is legal or not legal but i can tell you those guitars

rock and i got one from john rich from gibson guitars and i stand by it. john roberts, thank you. >> reporter: they're beautiful. megyn: wherever it is assembled it is awesome. could it be easier to get on the plane very soon with all of your clothes on? that update coming up

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