watching. arthel: hey, thanks for letting me hang out today. jon: it's been a lot of fun. come back anytime. arthel: okay. stick around, "america live" and megyn has an action-packed show. megyn: thanks, guys. fox news alert, brand new poll numbers for the third week in a row, mitt romney and ron paul remain in a virtual tie with the iowa caucuses just five days away. but the bigger story may be what is happening with third and now fourth place. welcome, everybody, to "america live," i'm megyn kelly. these latest numbers showing a tie between romney and paul with 23% and 22% respectively. but look who has just jumped into third, rick santorum. up from single digits just a few weeks ago to 16%, and this is not the only poll that is now showing santorum in third. but look at number four. newt gingrich.

the favorite just weeks ago, now tied for fourth place with rick perry at 1%. 13%. here with his take on it, michael reagan with the reagan group. thank you so much for being here. newt gingrich has seen a big slide over the past just couple of weeks, i just want to show you the real clear politics average for gingrich. this is the rasmussen poll we showed, but look at the real clear politics back on december november 13th, he was at 10% in iowa. december 11th, 31%. with all of the real clear politics averages for the iowa polls, what's going on with the gingrich campaign? >> well, the debates moved him up and the $10 million worth of ads against him have, of course, moved him down. he hasn't helped himself, though, with organization, the fact that just a few days ago we found out that he didn't qualify in his home state of virginia for the ballot there, coming up

on super tuesday. that really hurts someone who is trying to move ahead when they say that your organization isn't there to push you forward, they seem to back off feeling you don't have the organization to push you all the way to the finish line. so newt gingrich needs to shore up his organization if he's going to go much further after iowa. he can't afford to come in, well, fifth in iowa. he may end up in fifth or even fourth. not a good move for him. santorum moves up because santorum hasn't had any ads run out against him, and the fact he's had a consistent message and at this point what you have is the evangelicals are now solidifying and coming to the side of rick santorum. megyn: rick santorum really believed that eventually he would catch fire in iowa and if, in fact, that's what we're seeing, couldn't be happening at a better time for him. by the way, folks, he joins me live in our next hour. michael, i want to ask you about newt gingrich's camp touting the fact that you, michael reagan, and i quote, says newt will help

continue my father's vision. and they talk about an elections special in which you talked about the critical vote coming in iowa and talking about there is a person who will help continue your father's vision, and that person is newt gingrich. they talk about this coming on the heels of an endorsement by your dad's economist, art laffer. is it an endorsement by you of newt gingrich? >> no, it's not an endorsement. i haven't endorsed in the primaries. news max asked me if i would host a series of specials having to do with the election of 2012, would newt gingrich help push my father's policies forward? yes, he would. but so would many of the others that are in the race. it's interesting, my wife and i had this talk this morning as i was getting ready to do your show, and she said give a shout out to rick perry campaign. so you see what's going on in our home here in los angeles. megyn: do you, is there any republican right now, michael, who you find unacceptable? >> oh, yeah. i think at this point in time i probably find unacceptable ron

paul. would i vote for him if he got the nomination? yeah, i'd vote for ron paul if he got the nomination. i think that was a mistake by, in fact, newt gingrich also at this point saying who he would not vote for or leading us to believe he would vote for obama over ron paul, the nominee. if you're going to be a true reaganite, you, in fact, support the nominee of the party. what's going on is the fact that you have mitt romney who stays at 23, 24, 25%. you have five conservatives in this race splitting 50% of the vote. they need to find out which conservative's going to go on, and the battleground is going to be in south carolina in a couple of weeks. and whoever coming out of south carolina, the conservative out of there, will go forward. everybody else will have to stay home. megyn: and newt gingrich so far is still doing very well in south carolina, atop many polls there. michael, thank you so much. and, folks, with just days until the caucuses, the candidates are hitting the trail hard today in order to push their messages to

iowans. take a look at how the campaigns are spreading out across the hawkeye state. each candidate has at least three stops. perry iowa, ron paul is holding a town hall meeting at this hour. the texas congressman just picked up a major endorsement. the guy's name is iowa state senator kent southernson. he's a state senator, but he is important out in iowa politics, and he just happened to be the chairman of michele bachmann's iowa campaign until 24 hours ago. he was there at a campaign event with michele bachmann yesterday afternoon. by the evening, he was showing up at this ron paul event announcing on the stage that he had defected. this has turned out to be a big deal politically in particular between bachmann and paul, and this man's at the center of it. some are saying this is the death knell to michele bachmann's campaign. her campaign says it's the death knell to sorenson's future in

politics, or at least some observers are saying that. this man will be my guest at the top of our 2 p.m. hour, i will ask him about his decision to jump ship and why when jumping ship this late in the game did he go to ron paul? also, as i mentioned, rick santorum, he'll be on the program later. right now he's holding a faith, family and freedom meeting in muscatine, iowa. he has seen a big poll surge since the beginning of the month. he predicted that something like this would happen right before the iowa caucuses. i will ask him about his latest momentum. it's not just in this rasmussen poll. there was a cnn poll and some others that are suggesting santorum is sort of like secretariat, likes to run from behind. but as we near the final, the finish line, he's making a big, big push, folks. he joins me live next hour. plus, everybody, want to let you know that monday and tuesday "america live" is in iowa as the caucuses take place to bring you the brand new developments from the campaign trail.

and starting at 6 p.m. eastern time tuesday night you can tune in for fox news channel's special coverage of the caucuses live from iowa. 6 p.m. with bret, 7 p.m. with shepherd, and then bret and i will have special coverage for you as the evening votes come in. fox news alert now, new developments in a tense and escalating situation involving the u.s. and iran's threat to disrupt the world's oil supply. iranian state tv releasing this new video. it says, shows a u.s. aircraft carrier near a strategic waterway known as the strait of hormuz. iran is currently carrying out war games there after threatening to close off the strait. it is a vital passageway for oil headed to world markets. we're talking one-sixth of the world oil supply that goes through there, and iran says if it decides to close off this strait, there's nothing we can do about it. this here is video of iran's

navy drills as the country tries to put on a show of power and confidence. more on this developing story and what it would mean for the united states if iran succeeded in this threat. up later. well, the deepwater horizon explosion killed 11 people and caused one of the worst environmental disasters in american history, but was it a crime? "the wall street journal" now reporting that the justice department is preparing to file criminal charges that could land bp employees behind bars. fox business network's elizabeth macdonald is lye with the very latest. hey, liz. >> reporter: hey, megyn. you're right, this is possibly the first set of criminal charges that may be leveled against engineers in houston and also a supervisor according to this report. basically, alleging that these workers at bp did not adequately oversee the risks involved in drilling at the macondo well in april when it exploded in 2010.

and, megyn, these criminal charges could carry up to five years in prison each. we did reach out to bp. bp is declining comment. separate from this, bp fill faces a justice department lawsuit that's going to trial in february of 2012 to, basically, determine who is liable for what happened at the macondo well. and, you know, bp is saying in its regulatory filings that other companies are possibly responsible for what happened with the macondo well exploding and collapsing. basically, transocean, halliburton which was responsible for cementing the well, those are the companies that bp is saying should share the blame in the collapse of that macondo well in april of 2010. back to you, megyn. megyn: lizzie mac, thank you, lady. >> reporter: sure, delighted. megyn: we'll show you why a group of top economists are barely giving the president a passing grade. and some classic cars rolled out for kim jung-il's funeral.

we'll tell you which american-made car was a big presence during the procession. one of our viewers noticed this, sent us an e-mail, and she was exactly right. this is -- you're going to love this. plus, new details in a horrific christmas day masker. this man dressed as santa claus guns down his entire family. what police are now saying may have been his motive. yoo-hoo. hello. it's water from the drinking fountain at the mall. [ male announcer ] great tasting tap water can come from any faucet anywhere. the brita bottle with the filter inside. ♪

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megyn: welcome back, folks. we are just getting video in from a massive car pileup in new orleans, and the heavily traveled interstate 10 in the eastern part of the city is now shut down. some 40 vehicles involved in the wreck which started with a crash in one of the welcome back

lanes -- westbound lanes. at least two people killed in the predawn pileup, nearly 60 others have been injured. got to be careful out there. well, chilling new details in a senseless tragedy over christmas. police in texas releasing the 911 tape from the apparent murder/suicide outside of dallas. they say a man dressed as santa opened fire killing six members of his family as they unwrapped christmas presents. this is just too horrific. now we're learning the man identified as the gunman is the same person who called police about the shooting before taking his own life. trace gallagher live in our west coast newsroom with more on this, trace? >> reporter: and we should note right off the top there have been reports this may have been an honor killing because the father was a muslim who was very disappointed husband baiz daughter was dating someone not muslim, but we called the police and asked them that question straight out, and they are knocking that theory down by

saying, and i'm quoting here, we absolutely do not have any information to lead us to believe that is what it was. but that said, the father apparently did show signs of some very unusual behavior like putting surveillance cameras inside his family's home so he could monitor them. the 58-year-old father recently filed for bankruptcy from his real estate business, his home was foreclosed upon, he just divorced his wife, and on christmas morning he came to their home dressed as santa claus. and minutes before he opened fire, his 19-year-old daughter sent this text message to a friend. again, quoting, she says: i'm here. aziz, who is her father, is here, and he's dress inside a santa suit and trying to be father of the year. and then while he was shooting his family, megyn, the father called 911. now, listen very closely because he speaks softly. listen.

>> reporter: hmm. what was that? he says, i'm shooting people. after he killed his wife, his son, his daughter, his brother and sister-in-law, he turned the gun on himself. it's interesting because he walked into that house, megyn, he had two guns, and he opened fire with both barrels killing everybody except his wife whom he shot one time in the head before turning the gun on himself. again, police are still looking for a motive in this case, megyn. megyn: you know, we look for a motive because we try to make some sense of these things, and it's just, it's a futile, futile mission. trace, thank you. >> reporter: yeah. okay. megyn: well, a free speech lawsuit in south carolina. one former state employee says he was fired because he put

being an american first x that turned out to be -- and that turned out to be totally unacceptable. he'll join us live later to explain. plus, nascar driver kasey kahne trying to contain an uproar after sharing his opinions on breast-feeding in public. we'll show you what he's saying now. and mothers, by the way, who prefer feeding their babies formula are concerned today about the safety of what they're finding on the shelves. a third baby coming down with what could be a deadly bacterial infection. is there any reason to fear baby formula? we will speak to a doctor to separate the fact from the fiction and update you on the latest right after this break.

megyn: a flag of the united nations flying at half staff to mark the funeral for north korea's leader, kim jung-il. a spokesman for the u.n. secretary-general says it is a customary practice to lower the flag when leaders of member states die. some leaders say it's not a time to recognize the perpetrator of presentation. we are now learning that american-made cars led kim jung-il's funeral procession. ironic, of course, because he hated america so much. three lincoln continentals, can you believe? carrying kim jung-il's casket, picture and wreath. one of our viewers from "america live" right here spotted this yesterday and e-mailed us. we, of course, have some of the sharpest viewers out there, so thanks x keep the e-mails coming, kelly@foxnews.com. well, the centers for disease control reporting a baby

in oklahoma is the third to test positive for a rare bacterial infection. it is linked to a disease that recently killed one newborn and seriously sickened another. now, this bacteria is sometimes found in baby formula, and the company that makes enthat mill says tests found in their product say it is safe, but some new moms are understandably worried. joining me now, the chairman of the department of medicine at the newark medical center. thank you for being here. is formula safe s inthat meal safe? >> enthat meal is safe. b. johnson has done extensive testing on the powdered form of the formula and bound there is no evidence -- found there is no evidence to be alarmed. however, the lot has been removed. megyn: okay. so it was one lot of enfamil formula, it was powdered or liquid? >> it was powdered. megyn: okay, so the stuff you

have to scoop out and add water. >> that's right. megyn: it was just one particular lot of it. >> one particular lot. now, that lot has been tested, and they haven't found the organism in that lot, but i have to tell you a little bit about the organism. the organism's found everywhere; dirt, found in -- megyn: crnon --chronobactor. >> it can infect the blood of people who are imknew no suppressed, but with babies, they are very susceptible. this back bacterium is everywheo i tell mothers if you're going to be making formula, make sure you wash your hands, wash the nipple well, wash the bottle well. whatever you do, probably should boil the water, then let it cool and then mix it with the formula. megyn: or you could use bottled water as an alternative? even the bottled water can have the bacteria in it.

megyn: so boil the water and set it i said side -- >> let it cool and use it. whatever you do, there's such a thing called hang time, you don't let it stand around. you don't want to do it. megyn: sometimes you give it to the baby, the baby doesn't want it, you try it a couple hours later, you say don't do that, dump it, start anew? >> yeah. unfortunately, that's what you have to do. megyn: they've pulled this product off the shelves, stores like walmart and krogers and safeway, have they pulled it off of their shelves, this particular 12.5 ounce cans of enfanil newborn, okay, so that's what they've been pulling. why are they doing that if we don't know for sure that it came from enfamil powder? >> well, they're being careful. there were reports in 2002 and in 2004 of baby formula-associated infection. for some reason this bacteria likes to live in powdered

formula. now, this formula, this powdered stuff is really prepared under aseptic conditions, but these are not sterile powders which means there's not a lot of germs in it, the company test the lots very, very carefully. megyn: most parents are so concerned about the safe the oi their -- safety of their newborn babies. should they opt for the liquid form? is that safer, the stuff that's already premaid that you don't have to mix? >> well, the liquid form is very expensive, and in intensive care units in hospitals, a very sterile form is used or should be used. some hospitals are using the powdered form and they shouldn't really because with prixmies, they're -- prix mes, they're particularly susceptible. the connection between the blood and the brain is not really grown fully, and they're at risk. if blood gets infected, they can develop meningitis, spinal cord

infection -- megyn: so it seems like if they go for the liquid form, maybe it's a little safer, but you're still saying that powdered infant formula is still safe and people shouldn't overreact, i guess. >> shouldn't overreact, but take measures. of wash your hands, wash the bottle, and don't leave it laying around all day long. megyn: one of the other things they talk about is the bottle brush because sometimes we use just the same sponge or whatever that's sitting on our counter that we wash plates with, and it's so much better to have something that is just for the baby bottle that gets disinfected, washed with hot water, soap, antibacterial, i don't know, i mean, how far do you have to go? >> well, you don't have to go nuts, but you really should try to be as aseptic and as clean as possible. you're dealing with a little newborn, and they're very susceptible to all sorts of things. most mothers are pretty careful. i don't know where people actually are, you know, use dirty water to mix their baby's

formula. megyn: yeah. not intentionally anyway, but you raise a good point about letting it sit around and washing your hands. okay, we'll post the information on our web site, but that's the story. several of these stores have removed these 12.5 ounce cans with lot number zp1k7g from various stores, and we'll post that on our web site as well. doctor, very helpful. thank you so much, sir. >> thank you, megyn. megyn: all the best to you. >> best to you too. megyn: coming up, rick santorum suddenly moving up fast on the outside in iowa finish anything the top three in two big polls. isn't this where you want to be just as you rear into the finish line for the last final stretch? i don't know, this is what they told me in the movie, is "secretariat." the opponents and attacks that are now coming his way. we'll ask him live 20 minutes from right now. and if white house were a

schoolhouse, the president would be barely getting a passing grade on the economy. just ahead, we'll show you his report card from several top economists. and a group of moms staging a breast-feeding protest at high profile locations coast to coast. find out where and what's ticked them off straight ahead. >> people have forgotten what our breasts are made for. they're made to feed our children, you know? and, yes, they do some other pleasant things and what not, but really they're there to feed our children. payout from a legal settlement or annuity over 10 or even 20 years? call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today. because for every two pounds you lose through diet and exercise, alli can help you lose one more by blocking some of the fat you eat. let's fight fat with alli.

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megyn: well, new developments on the jobs front today as a new survey finds that less than a quarter of hiring managers plan to take on more employees next year, the study conducted by career builder. hugo chavez now accusing the u.s. of spreading cancer saying the cia is behind it. chavez making the bizarre charges one day after argentina's president was diagnosed with thyroid cancer. 2011, the year of the box office blews as -- blues as movie ticket sales hit a 16-year low. the economy and rising ticket prices blamed for the down turn. fox news alert, in just the last hour the white house approved a nearly $30 billion sale of weapons to saudi arabia. the sale intended to send a message to iran during a tense and escalating situation

involving iran's threat to disrupt the world's oil supply. iranian state tv releasing this video, it shows a u.s. aircraft carrier near a strategic waterway known as the strait of hormuz. iran is now carrying out war games there after threatening to close the strait which is a vital passageway for oil headed to world markets. wendell goler has the latest in washington. >> reporter: megyn, the u.s. has warned iran it will respond to any attempt to close an international waterway, military experts don't think iran could close the strait of hormuz, and other experts don't think it would because about 80% of iran's own oil exports go through the strait of hormuz. as you say, the u.s. just an hour ago announced the sale of $30 billion worth of fighter jets to saudi arabia, and a former white house official says iran is the likely reason. >> this would be aimed mainly at iran or at sort of iranian interference in the wider region. obviously, the saudis are concerned not only about what iran is doing in iran and in

iran's immediate environs, but what thai doing in iraq, what they're doing in yemen, for example. >> reporter: a u.s. official says the deal wasn't prompted by iran's latest threat, it has been in the works for more than a year, but it comes a day after iran conducted naval exercises in the persian gulf and shadowed an aircraft carrier and just hours after a military commander said the u.s. is, quote, in no position to tell his country what to do. the sale of fighter jets to the saudis won't threaten israel. >> by law all sales to the renal must be evaluated -- to the region must be evaluated for the impact on israel's quantitative edge. we conducted that assessment, as i mentioned during the congressional briefing last year, we conducted that assessment, and we are satisfied that this sale to saudi arabia will not decrement israel's

qualitative military edge. >> reporter: the arms sale of fighter jets will support about 50,000 jobs in 44 states for a number of years. the first planes, actually, will be delivered to the saudis in 2015. the upgrades will begin the year before. megyn? megyn: wendell, thank you. so what happens if iran follows through with its threat to cut off the oil supply? would it be like the 1970s here in america with high gas prices and long, long lines for folks waiting to fuel up? we'll talk with the ceo of gulf oil in our next hour on how ready we are here to deal with a possible oil crisis. well, a new report card closing out president obama's third year in office, and it is not necessarily all that stellar. a group of top economists are giving the president a mediocre grade on his stewardship of america's finances. here you can see 0 rated him excellent, 5 good -- hi. there's simon too.

we'll put that back up in a minute. there we go. [laughter] 18, fair and 13, poor. joining me now to discuss it, simon rosenberg, here he is. director of new democratic network and a former clinton campaign adviser and guy benson, political editor of town hall.com. i guess i will be playing the role -- there he is. hi, guys, having some issues here today. thank you both so much for being here. let's put the graphic back up once again so they can see the grades because, you know, it reminds me back in the school. where you'd get the a, the b, the c, the d. zero as, 13ds. guy, is that fair? >> well, i think 14 million americans might want to add a category which is f, and i think democrats even doing their very best spin job maybe cold give him a c -- could give him a c, so d sounds about right and

that's got to hurt a president who constantly seems to cite this mysterious group of consensus of economists across the spectrum to justify all of his economic policies, those same economists now we know aren't necessarily big fans of those policies. megyn: simon, you know, he raises an interesting point. the president gave himself a solid b+after his first year in office, it doesn't appear these economists agree with that. >> look, i think the president's economic record is mixed, i don't think this is big news, you know? i think we do know, however, that there's much more going right than is often talked about on these shows. corporate profits are at an all-time high, the stock market is still holding very well, we see exports increasing out of the united states at a rapid rate, we see high expectations of gdp growth next year, the economy looks like it's getting better, so the unemployment is too high, the housing market is too weak, there are real problems in the economy, but things could be a lot worse, things are improving, and there

are big parts of the economy that are doing well. the president's going to have a mixed record next year, and i think it's why about what this election's going to be about what we're going to do rather than what we have done, and i think the president will be on strong ground. megyn: the president talks about as having inherited the housing problem, as having inherited when he took office unemployment was high, of course, it went higher, but he inherited a lot of these problems, and he just says he's been digging us out of the ditch that the republicans said themselves. >> yeah. first of all, simon's trying to say this is about the future. this is going to be an election that's a referendum on the current president of the united states. and, sure, he inherited a tough situation. the housing bubble burst thanks to a lot of policy his own party put in place, but he did have a tough spot when he got in here. you have to look at his signature policies and what they've done. he had an $825 billion stimulus measure that has failed on its own terms. he had a housing so-called fix that even "the new york times" admits was a complete failure.

$4 trillion plus added to the national debt. the first-ever national credit downgrade and a health care bill that no one wanted that is already breaking its central promises. this is the record that the president will try to defend. he can't which is why we're going to see, i think, a vicious attack campaign from the democrats in 2012. megyn: you know, simon, these same economists that were asked who do you think would do the best job handling the economy, two-thirds named mitt romney. they knew he'd been in the private sector, they knew he'd done a few things, he's a technocrat, he's got a real life history in business. how much will that play in an election if it's between mitt romney and barack obama? mitt romney's real life business experience versus the president's? >> well, i think what's going to matter more is what mitt romney is saying he's going to do, and i if -- i think if he comets to

embrace a failed ideological approach to the economy which was essentially responsible for getting us into the mess that we are today and talk about protecting tax cuts for the wealthiest people and cutting for everybody else, i don't think he's going to be able to get the republicans back in the game. remember, megyn, despite all the problems the president's had, he's beating all the republicans in the current polls. in some polls he's up above 50% now against the republicans. he's not in bad shape. the economy could be better but, you know, we're not at depression or recession-level circumstances right here, and i think the question's going to be for the republicans is, do they have a plan that sounds credible to the american people that can make things better? today they don't have that. and i think that's going to be the big, in some ways the big drama of 2012 which is can the republicans get back in the game on the economy? megyn: why do you say no, guy? the president in these head-to-head matchups continues to perform well. >> i think there's a rasmussen poll out today that has romney

leading the president by six points. and the big one, the ap poll that came out last week showed that 52% of americans don't believe that this president deserves a second term and don't believe that the american public wants eight years of president barack obama. now, i think simon's right that the republican party has to put forward a plausible and credible alternative. it's not barack obama against a cardboard cutout, it's barack obama against somebody. and we haven't even had a single vote cast yet. it starts next week in iowa, and there will be a nominee eventually, and there will be very sharp contrast between a forward-looking agenda from the republican party and this president's failed policies. megyn: well, and as soon as they have a nominee, it's going to be game on. then it's going to get really interesting. then you guys will actually have some real candidates to automobile -- talk about on both sides. happy new year. well, a free speech lawsuit out in south carolina. one former state employee says

he was given the boot from his state job because he said he wanted to put being an american first, and he was told not to do that. he'll join us live to explain. plus, cops in chicago reportedly caught this guy trying to break into a house where a 13-year-old girl was sleeping. their suspect is already a convicted child sex offender who also happens to be an illegal immigrant. think he's behind bars? think again. plus, michele bachmann's iowa campaign chair appears at an event with her yesterday and three hours later defects to ron paul's camp. all fair in politics and war? the man at the center of the controversy joins me live, top of the hour. >> i can tell you the conversation that i had directly with kent sorenson. he told me himself that he was offered money, a lot of money, by the ron paul campaign. let's go to vegas. alright, let's do it. let's do it, let's go to vegas. vegas baby!

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♪ ♪ megyn: that's country star -- [laughter] country music star trace adkins. i'm laughing because he had a little racy video that went along with that, but we did not feel it was appropriate for 1:45 in the afternoon. in any event, there he was singing his hit "honky tonk," and his music is awesome. he's part of our new year's eve celebration -- that will be pg -- and we'd love for you to join us. he's great, his music's great,

and you will see him on our new year's program not to mention bill hemmer, yours truly for fox news' all american news special. trace adkins not the only music call performance, big and rich will also take the stage and perform some of their biggest hits, and the cast of the tony award-nominated show rock of ages. you've got to get a ticket to the show. all the fun starts at 13 p.m. eastern -- 11 p.m. eastern, and if you'd like to give a shout out, we get proposals every year from guys to balls, you can do it on our ticker -- guys to gals. the texting number that you send it to is 36288, and then you text the word utext, a space and then your greeting. 36288, type utext, a space and then your message and happy new year, folks. well, a former employee with the state of south carolina who happens to be an army national

guard veteran says he was fired by the state because he put being an american citizen fist. -- first. now mark kelly is suing the state claiming his employer violated his right including his right to free speech. mr. kelly joins me now live with his aattorney. thank you so much for being here. all right, mark, so you worked for the state in the department of labor, i gather, the licensing, labor licensing and regulation bureau. they say what you did was you monitored nurses or you -- what did you do? >> i was an investigator for the state nursing board, and i investigated physicians for 13 years. megyn: wrongdoing? >> right. violations of the medical practice act or the nurse practice act. megyn: okay. so you're doing your job, you happen to be a 13-year veteran of the national guard, and then they call you in like they call lots of people in for diversity training, it's sort of par for the course, everyone has to go through it, and the instructor starts saying some things that you start to say, whoa, wait, what?

tell us what he said. >> exactly. well, he started out by saying, um, in the afternoon session he started saying that americans are arrogant, and he said that numerous times. and then he said when dealing with people of culture, you need to put your faith in the backseat, and you need to think like an american second. and, you know, i questioned this, and we had, we had a discussion about it. and, you know, i felt that was the end of it. and a few days later i have a friend of mine come over and say, hey, they're taking up statements on you in regards to the cultural diversity and sensitivity training. so i went down to personnel and talked to those guys, and i asked them if there was a complaint filed. they said, no, and, you know, this went on. and then on may 16th i was terminated and they documented for my religious opinions and other opinions. megyn: were you suggesting in any way that in dealing with the doctors or the nurses that you had to go speak to that you were

going to be intolerant or that you are intolerant of people who are not naturalized citizens, or why did they think that your views about being an american first were going to interfere with your job performance? >> i have no earthly idea whey they thought that. and our job, and any investigator in the country will tell you, when you're communicating or working on a case, you want to build a pap report with the -- wrap por with the people -- rapport, so you're certainly not going to go down a at that path that's not going to do that. megyn: was there any evidence that your patriotism, that your faith -- whatever your faith is, i don't even know -- >> christian. megyn: -- that it was going to interfere, that you were biased against jews or harsher on muslim doctors or any evidence of that? >> no. we had, we had -- no, ma'am, none whatsoever. i had a good record. >> may i say something? megyn: the diversity training

workshop, and you told this carl wells who was running it that you didn't want to be putting americans second, and this guy got upset, and your employer got upset. do i have my facts right? >> that's pretty much it. megyn: i don't -- something, seems like something else is going on here, benjamin. i don't understand. >> well, megyn, let me say mark kelly had investigated nurses and doctors for 13 years. his job record was outstanding, it was spotless. his last employee evaluation less than a year before his termination was exceptional. the letter which you have a copy of which is a matter of public record shows that the reason he was terminated -- that the reason he was terminated was for what he said during that cultural diversity sensitivity training workshop. megyn: yeah. let me just read the excerpt to our viewers so they know what the three of us are talking about. this is to mark kelly from his

employer saying, in part, at one point during the training you suggested that all international persons should buy into the american way and that we should not change to accommodate them. and then they go on to write your comments made the majority of those attending the workshop uncomfortable, at times your behavior was so boisterous it was disruptive to the learning environment. what specifically was boisterous or disruptive, mark? did anybody tell you that? you say nobody complained. >> no, ma'am. again, it's a very good question, and we look forward to asking that question and pose that question to them. megyn: wow. this -- >> again -- megyn: go ahead. >> he had been interacting with doctors and nurses, investigating them, and never had a complaint filed against him for 13 years. so now we have, allegedly, the department of llr saying that he is unfit because he will be

biased and unfair in the future. megyn: because he said that americans should not change to accommodate international persons, because that's what -- according to the employer, that's the reason he got canned, because he said americans should not change to accommodate international persons. you know what's interesting to. i'm not saying mark is a racist, but you can be a racist. it's not illegal to be a racist or sexist or whatever. you just can't actually use those biases in the course of your employment without evidence of him using any biases in the course of his employment, there's a real question about whether what they did was legal. i'll give you the final word, benjamin. >> well, you know, the first amendment effects our free speech, and he's talking about matters of public concern during this seminar which is attended purely by llr co-employees. megyn: yeah. and you've got to go. your -- i've got to go, too,

guys, my apologies. all the best to you. >> thank you. megyn: coming up, one of the sport's most eligible bachelors, but now he's issuing an apology after criticizing a new mom.

megyn: nascar driver kasey kahne apologizing today after going on twitter to express his apparent disgust at seeing a new mother breast-feeding at a supermarket. he is often referred to as the sport's most eligible bachelor and has more than 100,000 twitter followers. we should warn you that some of the language he uses in these tweets is graphic. he wrote, quote:

megyn: then he writes, i don't feel like shopping or eating anymore. he later says that his comments weren't directed at women's rights to breast-feed, but this one mother's choice of location. now, this gets a lot of controversy because mothers have to feed their babies when they've hungry, and sometimes as it turns out they get hungry even at the supermarket. but should mothers be more discreet when breast-feeding their babies in public? that we leave to you to decide. speaking of which, another mother breast-feeding at a target store in texas claims she was harassed by the store's employees. that's trigger breast-feeding protests across the country. out lactovists. trace gallagher has the latest. >> reporter: not so much staged to protest the target store, but to make the point

that breast-feed anything the public should not be that controversial. it all began when a woman in houston apparently walked into a target store, her child was hungry, so she started breast-feeding the child in the back of the store, and several employees asked her to go into a fitting room. she says she was approached by so many different employees that she finally decided she was going to make a complaint to the target headquarters, and target ended up siding with her saying, look, it's always been company policy to make women feel comfortable. still, they organized more than 100 of these nurse-ins in 35 states, and target sported all of them -- supported all of them. now, listen to some of the moms followed by somebody who's not so comfortable with the whole breast-feeding in public thing. listen. >> people have forgotten what breasts are made for. they're made to feed our children. you know, and, yes, they do some other pleasant things and what not, but really they're there to feed our children. >> breasts are everywhere. they're used to sell cars and beer and sun glasses.

i can't use them for what they were intended for. >> i'm not such a fan of that. >> why? >> i just don't think it's really appropriate to do that in public. >> reporter: breast-feeding in public, by the way, is certainly legal. it's legal to breast-feed in public. it is clearly controversial and makes some people feel a bit uncomfortable. megyn: you know, i've got a lot of thought on this, trace. i used to feel a lot differently before i had babies, and they need to be fed and sometimes they don't like to cover, and before you know it, you're megyn kelly, and you've shown your breasts to a whole plane. i've got to leave it at that. see ya, trace. >> reporter: okay. [laughter] megyn: coming up, some really disturbing stuff about an illegal immigrant who is also a child sex offender who was just let to walk away. forty years ago, he wasn't worried about retirement. he'd yet to hear of mutual funds, iras, or annuities. back then, he had something more important to do.

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megyn: a major shot in the arm for mitt romney and ron paul less than a week before the iowa kaymitt romney opening up a 6-pt lead over president obama in the latest rasmussen poll in the general election. but ron paul getting crucial support from state senator kent sorenson. just after he resigned as michele bachmann's campaign chairman. you know how to cause a controversy, don't you, sir.

>> that was not my intention but i believe you have to do what's right. you were michele bachmann's campaign chair in iowa. ron paul's folks wanted you to support him and were trying to woo you away. you thought you belonged with bachmann until yesterday. you show up with an event with michele bachmann. then three hours later you walk onto the stage with ron paul. people are calling you disloyal. >> you got the facts a little wrong there. i was always in the ron paul camp before michelle came into the scene. i ran for the iowa house in 2008 when the republican establishment refused to help me. i lived in a district that could not be won by a republican. barack obama was marching across

the state and they refused to come to my aid. the only people that came to my aid are the people running the ron paul campaign. megyn: i don't want to get too deep in the weeds. what they do care about. >> you asked me a question and i'm going to answer that question. then in 2010 he did three fundraisers for me, they helped me again. these people are my constituents, they door knocked for me and worked hard for me. we are seeing frugal socialist like romney and ron paul at the top of this race. it was painful for me to make, but i belief by made the right choice and i'm going to help put ron paul over the top. megyn: you made the choice for michele bachmann, then you changed your mind. what made you change your mind.

>> i was just going to answer that before you asked it. the first thing that changed my mind is first of all, you have to understand i was talking to congresswoman bachmann in february of this year well before ron paul got into the presidential race. when she asked me if i what come onto her campaign and be her state chair. i decided to make a phone call to the ron paul campaign to see what their intentions were. they said they were unsure and they were waiting for ron paul to answer. two weeks go by and i decided to sign up with michelle. i worked hard and gave her 110%. i believe we are at a time when michelle is not going to win iowa. i have seen ron paul in a tough battle. he came to my aid when i was in two tough battles. i decided it was time for me to come to his aid. i don't want romney to be

running as our nominee. megyn: michele bachmann and her campaign were not happy with this. she said you told her personally that you were paid by the ron paul campaign to jump ship and she doubled down on that in a radio interview that was given today. take a listen. i want to get your response. >> i can tell you the conversation i had directly with kent sorenson. he told me himself he was offered money and a lot of money.

megyn: is the congresswoman make that up? >> unfortunately i believe she is. that conversation did not happen. even her own campaign staffer who is her iowa political director made a statement denying that and coming to my defense. within her own ranks. he did criticize me for my decision. but he said he's not going to let a good man like myself be drug through the mud. i think if i was michele bachmann by would focus more on the presidential candidate wrather than trying to destroy somebody she is unhappy with. megyn: these are high stakes. let me just ask the question. you are alleging congresswoman michele bachmann is lying. you never told her that you were offered money from the ron paul campaign to jump ship.

>> i never had those conversations with michele bachmann. megyn: or anybody on her team? >> absolutely. the crux of the matter will come out when the financial reports come out. you can look at ron palms expenditures. megyn: was money offered to you to jump ship? >> absolutely not. megyn: there is an a.p. story out from a veteran operative in circles in iowa. she managed your 2008-2010 legislative races. the a.p. is quoting susan getty saying you told her several times as recently as last month the ron paul campaign offered you money to leave michele bachmann. is susan getty if quoted accurately about it a.p. also telling a falsehood. >> i didn't have that conversation with susan. i think it's unfortunate we have come to this in this particular

race. the fact of the matter is i did not accept any money from the ron paul campaign. megyn: accept is different than offered. you are saying they never offered it, no ron paul, not anyone affiliated with his campaign offered you any money to support ron paul. >> i was never offered a nickel from the ron paul campaign. megyn: or anybody associated with it. >> never offered a nickel. megyn: senator, thank you very much. you know how to create controversy so we'll see what happens over the next few days as we gear up for the iowa caucuses. they happen this tuesday night and we are taking your thoughts on it at kelly@foxnews.com. we are tapped into the political pipeline. rick santorum joins us live less than 10 minutes from now. he's the man to talk to in iowa today because he's seeing quite a surge there. he was last place in the polls

and today he's third. michele bachmann will be sitting down with our own neil cavuto. you can bet they will ask her about the interview we just had. it happens right here on the fox news channel. we have all angles covered as we gear up for the iowa caucuses. america live will be broadcasting live from the hawkeye state next week monday and tuesday. we'll have special coverage for you tuesday evening beginning at 6:00 p.m. as the caucuses take place and the first voting for the presidential election season comes in. fox news alert. tough talk from iran. the hard line regime threatens to hold a critical oil shipping lane hostage. trawn state tv reporting that iran's navy chief said the quote the foreign fleet meaning the u.s. navy will be warned if it

enters the area where iran is conducting military drills. that's apparently in response to iranian claims that it's surveillance claims spotted an aircraft carrier through the strait of hormuz. iran says no one can stop it from closing this passage away. the escalating tension putting all eyes on oil prices. that's where sandra smith takes up the story live from the chicago mercantile exchange. >> reporter: we are sitting just below $100 a barrel. we are up even if cents on the session. so not a huge reaction to the news out of iran. but we had six straight days of gains in crude oil prices as we continue to see the threats coming from the region. a lot of traders say they believe it's tough talk coming from iran but this is reality and there is a faceoff going on

right now. this is crucial to tour crude oil supplies. 17% of the world's crude oil travels through the strait of hormuz. if iran is successful in shutting that down it could significantly impair oil supplies around the globe specifically japan and china get a lot of their crude oil supplies from that region. as this is a global market, if they have a hard time getting ahold of that oil that would spike prices globally. that's why economists and analysts say look forward to higher oil prices in the new year. potentially over $100 a barrel. that's what most analysts are calling for in the final trading days of the year. megyn: if iran does close this passageway could we go back to what we saw in the 1970s?

people waiting in long lines just to fill up their tanks. we'll be joined live by the ceo of gulf oil. a convicted child sex offender in this country illegally thrown in jail, but the county decides to release him. no one knows where he is now. should someone be held accountable? rick santorum jumping from the back of the pack to the front. he's now in third place according to one poll. he's surging in iowa and in a few minutes rick santorum joins us live on what it might explain. this big new development. >> i have a 1:15 fox news hit i have got to get on with and i don't want to disappoint megyn kelly.

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megyn: today's bust comes one day after police handcuffed 7 occupy protesters outside of mitt romney's head quartsers also in des moines. they met wednesday to think of ways to attend these campaign events and make their presence known. one of them predicted mass arrests. now we see them starting. coming up, rick santorum. we gave you the sound before the break. >> unfortunately i have a 1:15 fox news hit i have got to get on with megyn kelly and i don't want to disappoint megyn kelly. megyn: you did, senator, because you are late. but he's coming. we'll give him a minute. he's talking to the folks in iowa. he will be on moments from now. our thanks to the good senator.

also coming up. three tennessee miners finally freed after a fire trapped them underground for hours. fortunately they appear to be fine, but two others were injured as others were evacuated from the mine. what caused the fire? trace gallagher has the details. >> reporter: whenever you hear that miners are trapped more than a mile underground you automatically think the worst. in this case it was a textbook reaction of what should happen. the rig caught fire and spewed smoke into a mine shaft more than a mile down. 54 miners were in the area. 51 immediately escaped. two were treated for minar smoke inhalation and three miners were trapped by the smoke. they took shelter in a safety bunker. they waited for the smoke to be cleared, they were give up

respirators and they made their way out. this appears to be a case of practice makes perfect. >> these sorts of situations are ones we practice for and run drills on. our emergency response teams, our mine rescue teams executed just as they were trained. >> reporter: the miners were checked out at a local hospital. they are totally fine. the mine is now open and they are investigating the cause of that fire. that particular rig will be shut down until the cause has been determined. megyn: the talk is tougher than ever as iran threatens global oil supplies. u.s. warships are head for that critical channel. a look at what happened here if the flow of crude slows down. she sank to the bottom of the deep blue sea 100 years ago.

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megyn: senator rick santorum's strategy of visiting all 99 counties in iowa appears to be paying off. rick santorum in third place ahead of newt gingrich. and everyone else in the republican field except for romney and ron paul. joining me now from iowa. rick santorum. congratulations on that good news. >> thank you very much. it's great to be here.

megyn: there was a cnn poll that also showed you in third place. and to your credit you said one poll doesn't tell us that much. now we have another poll from rasmussen saying you are surging. you were down at the bottom a couple weeks ago. now you are up double digits, 16% ahead of newt gingrich who was leading the pack. >> i always said from the beginning, i'm not going to get an artificial surge, i'm not going to say something witty or glib at a debate. i'm going to go out and earn it and trust the people of iowa and new hampshire, but iowa first to do their job, which is to look at candidates, look at their vision for the country. look at their record as to whether they can deliver on that

vision and look at whether they can get the votes necessary to beat barack obama and govern this country in a conservative way. the people of iowa will give me the spark. that's what i believe is happening. folks are looking at the candidates and together analysis. they are deciding we stack up better than everybody else. i always believed that would be the case and i'm gratified iowans are seeing it the same way. megyn: i asked you why you failed to catch fire with the iowa voters and you said i'm hoping they will catch fire for me. now you are in a good position to at least do well. i know you would consider it a victory to come in third. what of the next contest? no question, you are a conservative person in your. >> i deals and ideology and politics. but the the nation, the contest, even the gop nomination is not about who is most

conservative. we have a lot of seats to go forward and voters to convince to capture this nomination. how can you do that if you are so far to the right. >> i won two state elections in pennsylvania which has more democrats than republicans. we appeal to more than mainstream republicans. we appeal to moderate independents and moderate and conservative democrats. i have no concern we'll do exceptionally well in this republican primary if we get people pay a little bit more attention to the plans i put out there. they are dynamic plans. they will fundamentally change washington, d.c. i have got the experience nobody else has when it comes to national security. as we are seeing with the problems in the gulf right now the big issue may not be the economy. it may be somebody with that experience and steady hand and track record of being on the

right side of the issues with respect to national security who is the best person to nominate for the republican party. we think we are well positioned for that. megyn: i know you have been taking aim recently at ron paul. you are focusing him as somebody you view is dangerous on the issue of foreign policy. and for the first time i heard from you, you mentioned his age. what -- how is his age relevant to your argument? >> i did that in a joking way. people have said, well, ron paul will get to washington, d.c. and he will become president and get the presidential brief and he will see how dangerous the world is and he will change. my comment was how many 78-year-old men do you know change their opinions? people are pretty set in their ways. it was a joke but it was in a sense -- ron paul has been saying this for 30 years. this isn't anything new. what i said in my criticism is if you look at what ron paul says he wants to do, a lot of

republicans like his economic platform. the problem is he will need the congress to go along with him to accomplish that. he can't do any of that unilaterally. he has a record in the congress of passing one bill. as opposed to his national security, he's commander-in-chief. in day one can he bring back all the troops, he can remove our fleet from the straits of more p -- the strait of hormuz. the vacuum created won't be filled by england, france or italy. it will be filled by folks who are not frerndly to the united states which is not good for our economy and international shipping lanes and national security. that's what people have to think about what he will be able to do, not what he campaigns on. megyn: you points out earlier having been elected senator from a purple state, some liberals

and mod rattle. now -- liberals and moderates. now rick perry is suggesting that you are a big spender and that you are one of those guys who loved the earmarks americans have such a problem with. this is rick perry in iowa earlier today. i want to get your response. >> senator santorum loaded up his bills with pennsylvania pork. and he even voted for the alaska bridge to nowhere. he said in 2009, and i quote, i have a lot of earmarks. in fact i'm proud of all of my earmarks. i put them in my bills and i will defend earmarks. well, senator santorum, i'm going to give you that opportunity to defend your earmarks. megyn: your response, sir. >> i'll say the same thing congressman paul said when rick perry went after him on his earmarks. if you look at constitution, the

constitution gifts power of the purse to the congress. the congress is the one that's supposed to spend the money. the idea that earmarks are against the constitution or something illicit that a congressman shouldn't do is factually incorrect. megyn: people don't like them. >> i understand that. i said and i have after i left the congress, i deferred my earmarks in the sense i'm proud of the money that i did set aside for things that were priorities in my state instead of having bureaucrats do that. but i recognize the american public sees this as a pox upon the congress. and that's where the american public is today. as a president it's easy to say i'll oppose congressional earmarks. the reason it's easy to say because with congress not earmarking that means as president i'll be able to allocate the resources accordingly. so it' not hard for rick perry or anybody running for president

to be against congressional earmarks because it gives more power to the president. megyn: any predictions for tuesday night? >> we'll do better than everyone thought we would do a week ago. i'm grateful to the people of iowa. we have had a lot of great response and we feel like we'll get that spark. how big i don't know. we'll keep working hard. we don't have the resources all the other candidates have. we have had our best day online. if you want to go to ricksantorum.com you can help us. megyn: coming up. a convicted sex offender who broke into a girl's home is on the run because a major city chose to ignore a federal government request to hold dangerous felons who also happen to be illegal aliens. a live report on a controversy that is hardly an isolated case. the most memorable images of

tough economic times in the 70s. gas rationing. long lines at the pumps. why those days could make a comeback if iran closes a waterway and the u.s. can do very little about it. are you receiving a payout from a legal settlement or annuity over 10 or even 20 years? call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today. diarrhea, gas or bloating? get ahead of it! one phillips' colon health probiotic cap a day helps defend against digestive issues with three strains of good bacteria. hit me! [ female announcer ] live the regular life. phillips'.

megyn: iran's threat to close

the strait of hormuz, a vital passageway for 20% of the world's oil is sending prices over $100 a barrel. what happens today if the oil slows or stops all together? we have the ceo of the cumberland group. and the author of the journal's guide to the 50 economic indicators that really matter. joe, let me start with you. as somebody who runs a little company we may have head called gulf oil. how likely is it the united states oil supply could be choked off to the point where we would see something like we saw in the 1970s? >> i don't think we would see

rationing by supply like we did in the 70s, that was a government mandated program. but we would see prices double most likely with any serious interruption in supply. probably half that could be diverted through east-west saudi pipeline or turkey. but taking 10 million barrels a day out of the world market give up the elasticity of oil would probably double petroleum prices in the u.s., depending on how long it would be in effect. megyn: you are talking pushing $4 a gallon. you are talking about $8 a gallon for american consumers at the pump which takes a lot of money out of the economy. how real is that possibility when you have got the saudis stepping in yesterday to say don't worry. if iran pulls this with the strait of hormuz we'll back the

oil supply. >> we also have the u.s. navy in the strait of hormuz and bahrain. the fleet is there. there is no more powerful navy in the world. the u.s. navy can keep the strait of hormuz open. maybe some gets restricted. i'm a big believer in the u.s. navy and the cure for higher prices if there is a slight reduction in supply is high prices. if we have slightly higher prices and heaven forebit's double. but 10% -- heaven forbid it's double. but we'll have other countries pulling more oil. megyn: joe doesn't want to hear about people not buying as much oil and gas. >> i'm sure he doesn't. but i think that's going to happen. megyn: you are talking about

iran. the u.s. navy would step in. they said as much. the saudis may try to back pedal. but we don't know what iran is up to. we have 1/6 of the world's oil supply coming through the straits. we are all links when it comes to oil and gas supplies. what's the back yunup plan? we have the strategic petroleum reserve before it doesn't get us far. >> it gets you a week possibly. it's improbable the iranians would be dumb enough to attempt to close the straits and i think we'll do our best to keep it open. but it still comes down to 90% of our transportation sector is dependent on petroleum and 1/5 of that comes from a 20-mile radius from the straits of hormuz. so we have to do everything we

can to diversify the transportation sector by natural gas which we have in abundance in this country and have domestic supply such as the xl pipeline and helping take down our northern supplies. we can't remain concentrated in our transportation sector on that area of the world it's ridiculous. >> yes, but you say it's improbable it's going to happen. i say it's as improbable as martians landing. for the iranians to saber rattle because they can get the price of oil up for a while, then they can get a better price. what's not to love with that? megyn: here is the question it raises for us. as you look at this, does the united states have a contingency plan? it's nice to say they aren't going to do it.

but shouldn't we have a contingency plan in case our oil supply gets disrupted? if we lose 100 million barrels a day, basically the strategic petroleum reserve will give us joe says a week at most. >> we lost supply from libya and the world did not come to an end. what happened is colonel moammar qaddafi came to an end. megyn: i don't know about the world coming to an end but what will happen? >> a million barrels and price does ration. but we are talking 17 million barrels that go through the straits. probably in the short-run 5 million to 6 million can be made up through other transportation means or rationing the supplies. the closing of the straits for any period of time would be a major event and i don't think there is any doubt the prices

would double. our long-run plan is on one, and that's to diversify off of petroleum to other liquids for the transportation sector and develop our own domestic resources. megyn: and without having implement those long-range plans is it possible we could see in a worse case scenario, the u.s. navy will step in. but it's interesting just to think about what if iran somehow pulls some hijinks and manages to disrupt the flow, could we see what we saw in the 1970s? >> i think so. you could see briefly gasoline go up $4. but that would take a trillion dollars out of the u.s. economy on an annual basis and the economic devastation it would bring on would be something that

eventually would increase oil demand. but that's not the best way to achieve energy firnght i. megyn: that would be after the damage had been done. >> the probability of this is so low it's not thinking about. the probability is i might as not come to work tomorrow because i might get hit by lightning on the way to the office. you can't worry about such small probabilities. megyn: i worry about things. when i'm on an airplane i hear there is a better chance of being killed by donkey than dying on an airplane. now i worry about donkeys. gentlemen, all the best to you both. coming up. a convicted sex offender in the united states illegally accused of breaking into a little girl's home. he was arrested, but now he's nowhere to be found because one county is taking a stand against federal immigration law.

"kelly's court" is next. >> this our willy horton moment in cook counties. it will only be a matter of time until we find someone who has been improperly released who would have otherwise have been held buy i.c.e. go out and commit some serious crime.

megyn: violent criminals near

the united states illegally now released from jail instead of being deported because of one illinois county will not cooperate with federal immigration officials. refusing to detain illegal immigrants like convicted child sex offender. he was slated for deportation after being arrested for break into a home. he made bail, then vanished into thin air despite requests by the federal government to this county in illinois to hold him. that county refused. mike tobin has more. >> reporter: if immigration enforcement or i.c.e. has interest in an individual who is being held in the cook county jail for whatever reason, past crimes or multiple entries into the united states, the county has elected to ignore the feds. once that individual does his time or makes bail he's going to walk out of the cook county jail regardless of whether fed rall

law enforcement has made the request, hold on to that guy until we can get him. authorities are searching for his convicted child sex offender. he was arrested for breaking into a home in which a 13-year-old girl was downstairs. i.c.e. requested cook county jail hold him. but cook county has elected to no longer honor i.c.e. requests. so made bail and disappeared. >> it will only and matter of time before we find someone who has been improperly released who would have otherwise been held by i.c.e. go south and commit some serious crime. >> reporter: commissioner timothy snyder vote against the ordinance.

>> we are protecting the 4th amendment standard. if you are going to hold somebody without a charge, you better hold them based on probable cause and an arrest warrant. >> reporter: four republican senators sent a letter in november to secretary napolitano urging the administration to put pressure on local governments that don't cooperate with federal law or federal policy. they are urging the federal government to withhold grant money unless cook county cooperates. so far there has been no response from the administration. megyn: can locals ignore requests from the federal bureau of immigration and custom enforcement to detain illegal immigrants suspected of serious crimes? joining me now, former prosecutor and cohost of "the five," kimberly guilfoyle and

defense attorney mark eiglarsh. that is the question. are they allowed -- can cook county -- forget whether you like it -- can cook county do this legally? say to the federal government, no. >> no. no. i think what they are doing is unlawful. and the comment about this being about protecting the 4th amendment right of the detainee. i think it's being intellectually dishonest. there are 250,000 reasons why they have chosen this position. that's how much it cost them to hold each of the prisoners an extra two days to allow i.c.e. urngd the law to do what they are earn titled to do. that's hold someone for 48 hours to make the determination as to whether this is someone that should have 0 go to immigration court. what they are doing is unlawful and they will ultimately pay the price in a bad way when they allow one of these violent

felons out. megyn: i know they are worried about what they said was you have an illegal immigrant who gets pulled over for a speeding ticket and winds up getting deported because they reported it to i.c.e. they are trying to save illegal immigrants who haven't committed big crimes from being deported. though it's not the obama administration to deport them. with an accused felon. tell i.c.e. i.c.e. can get rid of them on an illegal immigration deportation issue instead of a criminal warrant. >> absolutely. that's why it's a speetion argument. -- that's why it's a specious argument. it is grossly irresponsible. there is no legal standing or ground they can actually say supports this position. they have no authority to do

that. they are in direct violation of federal law. they need to comply with it. they have to comply with the i.c.e. to detain these individuals. they say they don't want to pay the money to hold these individuals in then raise that issue. bit of doesn't give you license to act on your own and violate the interests of the people in that communities that could be subject to harm because you are putting violent criminals back on the streets. megyn: here is what is stopping me. morally we can see the issue. letting a guy like this -- let him go instead of referring him to i.c.e. but there is a question about whether the feds can force cook county to do something else. all the feds issued for this guy is a detainer. all that is is a request to the county saying could you please hold him until we can look --

look into it? by nature the request, they give as you warrants, then we'll hold him. a request, a detainer, no, we are not doing that. does that guy have a point, mark? >> i don't think that he does. understood the act they have the authority to request and thus expect within 48 hours they have the right to decide whether somebody should be released or whether they should be held. the consequences are grave for cook county. three examples i found are significant. one was released after punching a cop and sending him to the hospital. another committed aggravated battery. finally someone with a drug offense who was deported in 2009 found his way back into cook county, facing 20 years in federal prison by violating into the u.s. and released by him. so already the harm is being done. megyn: this guy was found trying to break into a home where a little girl was.

>> they are saying it's a willy horton moment. you have to have somebody die or child be harmed. the department of justice needs to get on top of this and make sure they comply with the laws and regulations. there is long-standing case law that says they have the power over i am graiption. cook county is in direct violation of those due process issues. they have a fuzzy brain over the use of the 4th amendment. he is wrong. erroneous to say the 4th amendment requires that they refuse these detainers unless they produce a warrant. sorry, sir. megyn: it will be interesting to see if the federal government gets involved in trying to force cook county into doing something different. saying they control immigration. >> i think they have to. the impact if they don't fight back on this one, the impact will be sweeping across the country. how are they going to selectively enforce on ther

others -- enforce on thers and not this. megyn: food trucks taking a financial bite out of brick and mortar restaurants. will they get their wish for tougher rules?

megyn: some san francisco restaurants want food trucks to hit the road. they say new rules make it too easy for them to get permits to set up shop anywhere. adam housley live from our san francisco bureau. are we talking hot dogs and bagels? >> reporter: you are talking about some gourmet food from curry to cupcake to tacos and chowder. food trucks are popular not only in san francisco, but in other

parts of the country. about a year ago the city made the process for getting permits here much, much easier which aloud a plethora of trucks to come on the streets. what that has done some restaurants say is made their job more difficult. we talked to one guy who is in charge of a building where there is no restaurant around. he says food trucks for him makes total sense. >> we bring the food trucks here. there used to be a cafe in our building. because there was a downturn in the economy the cafe was not able to survive on its own so we decided to bring the food trucks over. report report it makes sense for the gift and jewelry area. but other parts of the city where there are restaurants, they say the' not fair for a truck to pull up and park outside. >> we all have to make money.

but there is always for any such project to be executed or initiated ... >> reporter: that time and place talks about money. restaurants in san francisco pay an average of $7,000 a month in rent. they pay very high taxes. the highest minimum tbhaijt country. more than $10 an hour. as well as garbage rates and other prices and things they have to pay for. while the food trucks, many of them come from outside the city, don't have to follow the minimum wage rule and park in front their restaurants and only pay $9,300 a year for the permit. megyn: adam, thank you. prosecutors are preparing the first criminal charges against some key people involved in the bp oil spill. [ male announcer ] you have dreams...

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♪ cold beer >>megyn: before we sign off don't miss fox news all american new year's eve show, we will be live with you on the big night, and headlining our show is trace adkins and the broadway show "rock of ages," beginning at 11:00 p.m. eastern until the ball drops. if