she screamed in my ear. jenna: i better be careful tomorrow. jon: yeah. you're going to have to apologize big time. thank you for joining us. jenna: move missouri starts right now. megyn: this is a fox news alert from the campaign trail. rick santorum unleashing a new attack on president obama other his handling other the number one issue for voters. do you know what it is? welcome to "america live," i'm megyn kelly. we're seeing a fired-up santorum in new hampshire today looking to build on his performance in iowa at a campaign stop a short time ago, he accused the obama administration of stifling american businesses, yep, you guessed it, jobs. take a listen. >> this administration is crushing the business community. why? because they know better. they know better how to run your business. they're going to dictate to you how you should operate your business from a very detailed perspective from washington d.c. and it's crushing, and it's

making businesses uncompetitive, it's requiring an enormous amount of paperwork and time away from productive things like making a profit. megyn: chris stirewalt is our fox news digital politics editor and host of "power play" on foxnews.com live. what a shift now. it's not that santorum hasn't been targeting president obama out on the campaign trail, but it is now sort of a mitt romney approach, if you will, for him it appears. focused like a laser on president obama, that's what romney's been doing, act like the principletive nominee and make the best case you can against the sitting president. >> well, and the other thing that's significant, that's an economic message, not a socially conservative message. in iowa he banded together the social conservatives who were primarily interested in social issues and saying we've got to stop ron paul, and you've got to make me the guy to go up against mitt romney who they think is not tough enough on those questions. now that he's broke into the top tier, he's got to talk about the

issues that matter the most to republicans across the country and specifically new hampshire which has had a difficult economic path to follow of voters primarily interested in jobs and the economy. he's got to shift his message to talk about that. megyn: santorum's got his eyes on the prize in new hampshire, obviously, mitt romney does as well. you have an interesting piece that reads as follows: it doesn't look like mitt romney could lose new hampshire, but then again he can't really win it either. why not? >> because it's all expectations, you know? governor romney, former governor of the neighboring state, keeps a summer home in new hampshire, is going to do probably 40% of the vote there. he's probably not going to do much less than that, but he's not going to do more than that because people have long ago made up their minds about him. he's going to win, but it would be very hard for him to beat expectations, and expectations are very high. some say he needs to win by 20 points, but certainly he's got to win in the teens. even a big win there, even a

commanding performance will be quickly discounted as everybody's eyes turn to south carolina. megyn: and that is the place where they say it gets ugly. as if it hadn't been so far, it's been so pretty so far. [laughter] chris, thank you. >> you bet. megyn: well, the focus shifts to new hampshire where the candidates are vying for voters ahead of next tuesday's primary. fox news is your election headquarters on the air and online. go to foxnews.com/elections to track the candidates and their next moves. another fox news alert, this time from the white house where there is new falloutrom a controversial decision by president obama that has left some republicans outraged. just within the last hour white house press secretary jay carney responding to questions about how the president bypassed congress to appoint a new government czar. richard cordray made head of th consumer financial protection bureau by way of recess appointment, and he is not the only person the president wants to appoint without congressional approval. chief white house correspondent ed henry has the latest. >> reporter: good to see you,

megyn, that's right. in fact, the president also used the recess appointment authority to push through three board members yesterday to the national labor relations board. that was decried by republicans also. richard cordray, who you mentioned, out there today taking some questions here in washington at an event and trying to project an image that, look, he's the new sort of consumer cop, and he's saying he wants to reach out to republicans, he wants to work with everyone, trying to project a very much bipartisan image. but the way in which this was done is maybe sending the opposite signal to law make ors on the hill. this was really kind of the most in-your-face move the president has done so far in this we-can't-wait campaign that he has branded saying he's not going to wait around for congress. but jay carney a short time ago at the podium defended it and says the president has this right. >> this isn't about process, this isn't about whether or not congress is in session, and if i could digress for a minute, i

think all of you should run up to capitol hill, check out the house and senate and see if you can find a single member of congress and then tell me on this working day for most americans whether or not congress is in session. >> reporter: so their position is congress is in recess right now, so the president can use his constitutional authority for recess appointments, but what thai leaving out is the senate has also been in what they call pro forma session where they are open even just for a few seconds. and the fact of the matter is that back at the tail end of the bush administration, senate democratic leader harry reid had the senate in pro forma session, and then president bush -- a republican, obviously -- honored that, and there was sort of a gentlemen's agreement and did not push the recess appointments at that time. that's why republicans like john mccain are furious. take a listen to him. >> the president's taken these far, far left people, appointed them, quote, recess appointment, which is an absolute abuse of power, another reason why the president of the united states should not serve another term.

>> reporter: they are, clearly, not backing down here at the white house though. they, you can tell that the reaction here is that the more republicans get angry about this, it sort of fires up the president who's using these recess appointments for people like richard cordray to say, look, he's standing up for consumers, he's standing up for the middle class, republicans are trying to protect wall street. it's the exact message the president is going to be using heading into the campaign, and that's why this fits right into that, megyn. megyn: ed henry, thank you. and the white house faced questions about its go it alone attitude by ignoring congress. some critics, including one presidential candidate on the republican side, say the obama administration is acting like a, quote, monarchy. during a white house press briefing tuesday, a reporter raised this very issue with, again, white house press secretary jay carney. >> on the domestic question, could you give us a little bit more clarity on this with or without congress? because it's being interpreted

by some -- gingrich, for example -- as virtually a monarchy. megyn: coming up in just moments, is the monarchy claim valid? we'll have a fair and balanced debate, and we'll tell you what ron paul is saying about this now. well, we are getting new details this hour on the shooting of six police officers during a drug raid in ogden, utah, about 0 miles north of -- 40 miles north of salt lake city. one officer died of his injuries, five others are recovering, and now we're learning more about the suspect in this case. trace gallagher live with the very latest. >> reporter: i mean, megyn, this sounds like a story out of mexico or colombia, not utah. these are narcotics strike team members made up of local police officers as well as federal drug agents. they went to a home to serve a search warrant on a drug suspect. they knocked on the door, there was no response, so they forced their way in, and that's when they came under fire. when word came that an officer was down, cops flooded that

neighborhood. they shut down three blocks. they ordered people to stay inside, then there was more shooting. witnesses say 30, 40, 50 shots. one officer killed, five others wounded, some critically. here's a witness, listen. >> we heard three, three pops, um, didn't know what they were at first, you know? two or three minutes later we heard multiple gunshots going off. sounded like ak47s and ran out of the house, came down here to the corner and got escorted back to the house by uniformed officers with their rifles in hand telling us to get back in the house. >> reporter: after several minutes and several shots, eventually the strike team cornered the suspect in a backyard. he was shot and wounded, but he will survive. the officer who was killed has now been identified. he is jared francone, he is a seven-year veteran of the force, he has a wife and two young children. listen.

>> agent francone was one of the more experienced agents in our unit, and he will be sorely missed. >> reporter: you heard that witness say earlier sounded like an ak-47, megyn, there is no word on the type of weapon used, but one suspect, six officers down. an indication that this was a great deal of firepower. megyn: trace, thank you. well, the head of america's largest oil industry group is getting a whole lot of attention today for a warning he just sent to the white house. he is our guest in three minutes, and we will explain what he has said. and hard times for an iconic american company. what is the future of kodak? stu varney with some answers. plus, america's toughest sheriff versus the justice department. allegations of civil rights violations. will sheriff joe cooperate with the doj investigation? it is a showdown like no other.

we'll ask him when he joins us live. >> let's get some facts. why would they be afraid to give us the facts? what are they trying to hide if there are any facts? what are they trying to hide? give it to us. we'll work together. there he is, poised to discover plum amazins, the amazing alternative to raisins and cranberries with more fiber, less sugar, and a way better glycemic index. he's clearly enjoying one of the planet's most amazing superfruits. hey, keep it down mate, you'll wake the kids. plum amazins. new, from sunsweet.

megyn: new fireworks in the debate over building an oil pipeline from canada to the bull

of mexico. supporters argue the pipeline will bring a steady supply of oil from a friendly ally, but critics fear it could cause environmental problems. the president has been trying to shelf a decision on this project until after the election, but my next guest is warning there will be a political price to pay if this thing does not go forward. jack gerard is president of the american petroleum institute, that is the nation's largest lobbying group on behalf of oil and gas industries. thank you so much, jack, forking with here. >> thank you, megyn. megyn: you have said if president does not approve this project, that there will be serious, huge political consequences for him. what does that mean, jack? >> well, megyn, my sense is, and i think the tone of the country today is, we need to be focused on job creation and economic recovery. the keystone xl pipeline, if approved by the president, would immediately create 20,000 new

american jobs. this is the largest shovel-ready project in the country today, and all it requires is one yes from the president of the united states. after three years of two comprehensive environmental reviews that concluded there was no significant environmental impact, it's time to move this forward. organized labor supports it, the president's own advisers -- today steve radner, the car czar for the president ma that managed the auto bailout -- endorsed the pipeline. the former national security adviser came out and supported it, organized labor supports it. i think there's going to be fallout politically if this pipeline is not approved particularly at a time when we're at desperate need for new jobs. megyn: you know the environmentalists do not support it, so the president's been put in a tough position in having to disappoint one of two important

groups, and some political ab lists have come on the show and said he chose to go with the environmentalists for now by delaying a decision on the project because he believes the unions are going to get out there no matter what, whether he says no to it or yes to it, and i guess he's more worried -- according to these analysts that have come on the show. in any event, what is your group going to do, if anything, if president chooses not to have this approved through his state d.? >> well, megyn, we're very actively involved, we're working closely with organized labor and others to make sure the president understands the vast majority of americans see this just as the canadian prime minister harper said, this is a no-brainer. this shouldn't be hard. we've already done the environmental assessment. there's a very small group, a very small minority of shrill voices who are trying to convince the president he shouldn't do this. these people fundamentally oppose development of oil and natural gas in this country, and

its use. 61 president of all the energy we use in the united states is oil and natural gas. i think there will be blowback from across this country, all the states, other leaders as a direct result of denying the largest shovel-ready project in america today if president doesn't approve it. megyn: when you say you are working very closely with organized labor, are you telling me you think the unions will make the president pay politically if he does not approve this project? because, you know, as i say, the assumption has been they're not going to be happy, but they're certainly not going to vote for a republican over this. >> well, i don't think about that, megyn. i think what's interesting is when their national and international leadership works closely with us, they're as frustrated as we are. energy should not be a partisan issue, it shouldn't get held up by a small group of shrill voices. i think they're the rank and file out there in the country today who are clamoring saying

we don't understand why we can't get back to work on something that's as simple as an energy project that brings 20,000 jobs immediately that the builder of the project has already indicated would belong to the organized labor community. megyn: jack, you know what the pushback on that is. the environmentalists say as much as we need jobs and oil from friendly countries, we also need clean land and clean water, and we have to make sure that we can preserve those things before we approve this thing and its particular route. and even the white house has now come out and said, all right, we agreed to a 60-daytimeline to decide this because the republicans encysted on that in a bill that they sent up to him on tax cuts, so now he's got to decide sooner rather than later, but officials have said that deadline could force the president and the administration to reject the pipeline because now they've been force today make a decision too soon.

>> well, two important things to consider, megyn. first, the provision passed by the congress had broad bipartisan support. when this bill originally went through the house of representatives, 47 democrats supported it. so this isn't a republican issue. secondly, the legislation itself says, mr. president, your sole determination is to say whether this is in the national interest or not. the environmental considerations have been studied for over three years, and the conclusion after two comprehensive study is the this will not have significant adverse impact. so we've already protected the environment, something that's very important to us as industry as well as those who live in those local communities. megyn: how much money are you going to throw after this problem, do you think, jack? >> well, the pipeline itself would invest $7 billion in the united states to build this 1700-mile-long pipeline. this shouldn't be a tough political choice. this is more about doing what's

in the best interests of this country, particularly when we look to the middle east. we see the discussion with iran, the straits of hormuz. this is easy. just do the right thing for the american people. megyn: jack gerard, thank you, sir. >> megyn, good to talk to you. megyn: likewise. well, a big controversy in texas after police shoot and kill a 15-year-old boy for refusing to drop a pellet gun. >> [inaudible] megyn: this is a picture of the gun the teenager was holding. were police justified? we'll investigate. plus, a family's suv drives off the road and gets trapped under several feet of snow and ice. the pictures show the hopeless view from inside the vehicle. the parents now talking about the miracle that saved them. and after helping generations of americans capture their memories, kodak -- say it

ain't so -- coup heading to bankruptcy. >> the film disc automatically so you can capture those wonderful moments you may have been missing. ♪ >> the new kodak disk camera. [ male announcer ] cranberry juice? wake up!

♪ that's good morning, veggie style. hmmm [ male announcer ] for half the calories -- plus veggie nutrition. could've had a v8.

megyn: the lone survivor of a brutal home invasion and murder in connecticut, his family was, indeed, trying to put the past behind him. dr. william petit jr. has plans to marry again. he got engaged over the weekend to christine, a wedding and portrait photographer. you may remember the doctor lost his wife and two daughters back in 2007. they were attacked and killed by two men in their own home. dr. petit was able to escape just barely. those two men have since been

convicted of murders and are on death row. well, for more than 130 years kodak has not just been one of the biggest names in photography, it has also been a symbol of american innovation. but the digital age has not been so kind to the film pioneer. now "the wall street journal" is reporting that kodak is preparing to file for bankruptcy. a far cry from the days when the company's products were on the cutting edge of technology. ♪ >> kodak announces a whole new way to make pictures. introducing disk photography. >> flash cube. >> put it this way, man, drop in the film, get yourself a flash cube, pop it on -- >> the flash turns itself on and flashes automatically when you need more light.

even turns itself off. you'll never worry about flash again. megyn: oh, michael landon. oh. kodak is not the only american business icon that could be in trouble. stu varney knows the rest. he's the anchor of "varney & company." don't you remember that? the flash cubes? i remember getting my first kodak disk, i was so excited. >> i feel extremely nostalgic looking at that video. both of us surely remember the stacks of yellow boxes and that expression, what was it, kodak moment? this is a kodak moment. megyn: what's done them in, the iphone? what did it? >> okay. go back to 1975. that's when kodak actually invented the digital camera. i think we've got a picture of one. it kind of looks clunky. megyn: is the disk considered digital? >> this is prior to that. megyn: looks like a computer. looks like a printer. >> almost was. 1975, first digital camera, kodak comes out with it, but

they failed to make use of it, failed to innovate, failed to put it in the marketplace. along came foreign competition, and just absolutely ate their lunch. then they were saddled with a large amount of yearly payments to their pensioners. they've got 19,000 retired workers costing them hundreds of millions a year -- megyn: and that's fine if you continue to make hundreds of millions, but they didn't. >> the camera disappeared, they stopped making film a few years ago, and that was their base. megyn: that's the thing, nobody uses film anymore, and barely anybody goes into the store and actually gets their pictures delivered. it's like you do it all online now. >> testifying's online, kodak is disappearing. the "wall street journal" says they could declare bankruptcy by the end of this month or early in february. that's bankruptcy. they're out. megyn: they've been around since the 1800s, the late 1800s. we've got pictures for you to

prove it. >> 130 years, that's right, 1313 years. megyn: what other industries are we talking about that may be in danger? >> it's not so much industries, it's big, iconic names. for example, sears. it is not close to bankruptcy, but they're closing 120 stores this year, and that's a huge retailer in american history. megyn: yeah. >> american airlines is bankrupt. bankrupt. megyn: yeah. >> who would have thought? how about yahoo!? just ten years ago yahoo! was king of the hill, now it's a takeover target, just up for sale. how about research in motion, the blackberry people? >> for the last ten years, king of the hill again, dominate everything in mobile computing and communications. they are now a takeover target. megyn: really? well, they've had some problems with their service lately. we've had a couple of shutdowns that have really crippled -- >> yeah, but doesn't america move fast? if you look at europe and japan, the same names that dominate today dominated three generations ago. megyn: we're fickle.

we have to have the drive-through food and banking, and if our blackberry are down for three hours, we're ready to switch providers. thank you, stu. remember that? the kodak disk? i had one that was pink, and then i saw that in my cousin vinnie, and i thought i had to move on. >> great movie. megyn: the best! monarchies are pretty un-american, so why is the obama administration now facing questions about whether it is acting like one? >> on the domestic question, could you give us a little bit more clarity on this with or without congress? because it's being interpreted by some -- gingrich, for example -- as virtual ri a monoaround ri. megyn: in three minutes, a fair and balanced debate on accusation that is the white house is going far beyond what the constitution allows. and a car in the flames, and there's someone asleep inside the vehicle. >> where do you live? megyn: why police say he may have never awakened if it was

not for them. plus, a tragedy at school, and police are facing the heat. the growing outrage after they kill a teen with this pellet gun that you see here. >> they overreacted. i mean, i understand they look like a gun, but, i mean, like, shooting him three times and then one in the head? i mean, that's unnecessary. he was a juvenile, he was a child, my child that i don't have anymore. the best approach to food is tkeep it whole for better nutrition. that's what they do with great grains cereal. they steam and bake the actual whole grain while the otr guy's flake is more processed. mmm. great grains. the whole whole grain cereal.

when i'm out with my kids, my daughter's like, "mom, wait up!" and i'm thinking, "shouldn't you have more energy than me? you're, like, eight!" [ male announcer ] for every 2 pounds you lose through diet and exercise alli can help you lose one more by blocking some of the fat you eat. simple. effective. advantage: mom. let's fight fat with alli ♪

megyn: a growing controversy in texas after police shoot and kill a 15-year-old boy in the halls of his middle school. he was holding a pellet gun that was so realistic, the officers believed it was a pistol. his parents are now demanding answers, and now we are hearing the police radio tapes. trace gallagher has the latest. trace? >> reporter: and, megyn, those radio tapes are rifting. i'll play -- riveting.

a 15-year-old boy brings what appears to be a handgun to his school in brownsville, texas. now, the school says he goes on to assault a classmate, and then he makes a threat against the school officials while he's holding the the gun. they put the campus on lockdown. they call campus police, they call brownsville police. then the police show up, they confront the boy in the hallway right outside the principal's office. the police say they tell the boy on three different occasions to drop the weapon. he refuses. listen now to the radio contact. you'll hear the shots fired in the end. play it. >> reporter: did you hear those shots fired? three shots. the boy was shot three times

including one time in the head. what he was holding turned out to be a pellet gun. and now his father is saying the cops overreacted. listen. >> they overreacted. i mean, i understand they looked like a gun, but, i mean, like, shooting him three times and then one in the head? i mean, that's unnecessary. he was a juvenile, he was a child, my child that i don't have anymore. >> reporter: looked like a gun. look at this thing, it looked exactly like a gun. that's what police are saying. this was a pellet gun. we went back, megyn, we checked the laws. do you remember the laws where there's supposed to be an orange tip on a lot of these guns like bb guns? well, apparently, pellet guns do not fall into that category like toy guns and bb guns. so it's unclear right now, but it does not appear these guns need to have that orange tip. but, clearly, police continue to investigate this incident. megyn: wow. trace, thank you.

well, congressman ron paul is today joining the ranks of republicans slamming the white house for what they call an abuse of executive power. congressman paul suggesting president obama thinks he's a king. it started when the obama administration yesterday appointed richard cordray as the new consumer protection czar despite the fact that he was not approved by the senate just the day before, on tuesday, a reporter pressed the white house spokesman, jay carney, on claims this administration is acting like, quote, a monarchy. take a listen. >> on the domestic question, could you give us a little bit more clarity on this with or without congress? because it's being interpreted by some -- gingrich, for example -- as virtually a monarchy. >> we can't wait for congress to act, and when congress refuses to act, when republicans choose the path of obstruction rather than cooperation, then the president is not going to sit here. this imrid -- gridlock in

washington is not an excuse for inaction. megyn: joining me now, simon rosenberg and mike gallagher who is also a fox news contributor. all right, guys, thank you so much for being here. we can't wait may be fine in principle, it's not fine if president is doing things prohibited by the separations of powers. i mean, there's a reason we have three branches of government, so this comes down to whether he's overstepped that line here. mike, i'll start with you. has he? >> well, i mean, this is not the first time a president has done these kinds of recess appointments. in fact, he hasn't done as many as george w. bush did. so, you know, i'm going to be fair and balanced here in our fox news tradition and point out that this isn't unique to president obama. having said that, you know, the president has some pretty powerful enemies over these kinds of appointments, particularly the one with cordray. when you've got the powerful u.s. chamber of commerce that expresses disappointment in what the president did, i mean, i'm just so uncomfortable as a consumer and as a citizen to see

that the president continually at loggerheads with the u.s. chamber of commerce. i think that's problematic for president obama, and it ought to be noted. i also think it's appalling when his spokesman literally says we'll do this with or without congress. i know congress' approval level is in the toilet, but still you're right, we have branches of government, megyn, that ought to be respected. and i think any of us obama critics who have been told of his narcissism and his will to get things done his way or the highway aren't really surprised by this latest round. megyn: simon, ed henry was on earlier reporting that during the bush adminiration you're not suosed to make a recess appointment if senate is technically not in recess. and so during the bush administration harry reid had had the senate in recess just a little bit over the course of the three days to sort of say, we're here, you can't do it, and apparently, president bush honored that which is why he says republicans are so angry

about what the president's now. is that fair? >> i want to pick up on what my colleague said. at this point george bush had appointed five times as many recess appointments as president obama had. it's a common thing that's been dope, it was done much more, actually, under the bush administration than under the obama administration, and i think, you know, the president is the ceo of -- he's a ceo. he has tens of thousands of people that work for him, he needs his team in there to do the people's business. the republicans have overstepped their bounds recently in the way that they have blocked and blocked an blocked recess, you know, appointments of people that are needed to run the government. i mean, these specific recess appointments were enabling these -- megyn: but they're always needed. they're always needed. >> no, no, but there's a difference between, megyn, an assistant secretary of blah, blah, blah, right? and the head of an agency that if you don't have the head of the agency, the agency doesn't work at all. so the president of the 160 appointments they've been waiting for picked a few people who were needed to actually make

agencies work and said we can't because congress has overstepped their bounds, we've looked at this, we think this is legal, we're going to go ahead and do this -- megyn: i'm going to go back to mike but i just want to press you for an answer to my question. i understand that's your argument, but i just want you to address that sort of disparity in the way president bush handled it and the way president obama's handling it. when the senate was technically in session, apparently, president bush acceded to congress and did not do it, and this president is not doing the same. >> agreed. i think circumstances are different. i think what the republicans have been doing is much more extreme than what happened under harry reid and the democrats of george bush. they've gone too far. they've blocked too many people. it's affecting the ability of the government to function. barack obama was elected by the american people. they're his boss. his job is to run the government for their benefit. he's doing the right thing when the republicans have overstepped normal bounds. megyn: what say you, mike? this is a guy who's going to run

the consumer financial protections bureau and three members of the nlrb. >> and, of course, we're all painfully aware of the ridiculousness of the nlrb's attempt to tell boeing who they could hire and run jobs out of this country. i mean, that was a big black eye for the obama administration. so that's a big, important distinction. also an important distinction you made, megyn s the way that president bush did respect the process and honor the process. and my colleague, simon, acknowledges that this is unprecedented. it goes back to the philosophy that a lot of liberal democrats have that this president is somehow, and as simon put it, a ceo. he's not the ceo. he's the president of the united states and is expected to have some degree of workmanship with the united states congress. and this is not a guy who respects the rules. i mean, this is a president who does it, like i said earlier, his way. and so when he, when he goes into these uncharted waters, again, to those of us who don't like what he's doing as president, it's not a big

surprise he does not respect the confines of the office of the presidency. he just, he goes into unchart earth -- uncharted waters. you talk about on city nancy, this is obt plant what the president is doing. megyn: panel, thank you so much. always a pleasure, gentlemen. see you soon. a major fight between the justice department and joe arpaio over allegations of racial profiling. will the sheriff work with or against the justice department which is coming after him? we'll ask him in three minutes. and a young mother and her baby in a terrifying situation; intruders at their door. the mother is armed, so she shoots. new details and new questions about exactly what happened in that house in today's kelly's court. >> i'm here by myself with my infant baby. can i please get a police inspector out here? >> are your doors locked? >> yes. i've got two guns in my hand. 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. than leading regar juice drinks. because less sugar is a better way to fly. ♪ just not literally. capri sun. respect what's in the pouch. and during the four course feast, there's so much to choose from. [ male announcer ] the four course seafood feast is backt red lobster. still just $15. get soup, salad, unlimited cheddar bay biscuits, dessert, and your choice of 7 entrées, like new honey bbq shrimp skewers or shrimp and scaops alfredo. all four courses, just $15. [ jody ] it's really good value. all my guests love it. i'm jody gonzalez, red lobster general manager.

and i sea food differently. the two trains and a bus rider. the "i'll sleep when it's done" academic. for 80 years, we've been inspired by you. and we've been honored to walk with you to help you get where you want to be ♪ because your moment is now. let nothing stand in your way. learn more at keller.edu. i habe a cohd. and i toog nyguil bud i'm stild stubbed up. [ male announcer ] sorry, buddy. truth is, nyquil doesn't un-stuff your nose. what? [ male announcer ] it doesn't have a decongestant. really? [ male announcer ] you need a more complete cold formula, like alka-seltzer plus liquid gels. it's specially formulated to fight your worst cold symptoms, plus relieve your stuffy nose. [ deep breath ] thank you! [ male announcer ] you're welcome. that's the cold truth! [ male announcer ] alka-seltzer plus liquid gels.

♪ oh what a relief it is! ♪

megyn: new developments in the fight pitting america's toughest sheriff, joe arpaio, against the justice department. the feds accusing the sheriff and his deputies of violating civil rights laws, claiming they are racially profiling latinos and making unlawful arrests among other things. sheriff arpaio now says he will cooperate with the doj in its investigation, but he also wants the specific proof behind the allegations against him. sheriff arpaio joins me now, good to see you again. so the justice department is cracking down on you making a lot of allegations, and you have said you will cooperate with them, but you want more than 100 pieces of information of their evidence against you. they've basically told you you're not getting that. they say, sheriff, that if you want to continue to debate the facts underlying the findings

against you, the only option now is litigation. your reaction. >> with well, that's what they want. but let me put et this way -- put it this way, we've been cooperating for three years. in march of 2009 they launched the investigation. a hyundais after obama was elected, they went after me, the judiciary committee connors and everyone else on our illegal immigration fight. the president just recently mentioned me at the white house when some latino reporters asked when are you going to get this investigation done, mr. president. of course, he made some comments, he doesn't like the way i'm operating here with the state law. so i look at this is politics even in march. the high i.c.e. official said politics are at play. so even back then their own official said this is politics, which he was correct. it is politics, continues to be politics, and i'm a little

disgusted having spent 30 years with the u.s. government, the justice department's head of the federal drug enforcement in mexico, turkey, i can go on and on, and now they're coming after me and my people when we don't have any systemic operations on going after, you know, these illegal aliens and racial profiles. megyn: i want to ask you, sheriff, because you say it's political, but the investigation by the doj began under president bush who was a republican. does that -- >> no. megyn: does that change your view at all? >> no, wait a minute. we were never notified of any investigation by bush. they may have an allegation, but, no, this was 100 days after obama took office that we were notified they're going to investigate me and my office. megyn: my understanding was it was disclosed in a march 2009 letter to you, but that the doj had begun its investigation in 2008 under president george w.

bush. >> well, if they did, how come we didn't have any information? they would have notified us. this is a civil case, that we were under investigation? it was obama that started it 100 days after office, and they've been going after me ever since. and by the way, the press conference that this perez, head of the civil division, he had that december 15 and gave me 60 days to resolve this when we've been operating and working with them for three years. his own assistant that day apologized to us that we're being sandbagged by this press conference two days after the 1070 went to the supreme court, the same week holder's having all his problems, the same day that the dedicated border patrol officer was killed, anniversary. i can go on and on. megyn: let me just tell the viewers, joe, because i want to give you the chance to respond was they've come out and said it's not political, it's about

you abusing latinos and hispanics, and they say hispanics have been routinely targeted for traffic stops, some legal residents have been treated as if they're illegal and jailed, latino inmates with poor or no english proficiency are punished for not understanding english, excessive force used. they say this is a pattern that needs to be stopped, and you'd better comply otherwise there's going to be real trouble. >> well, let's have all the facts. they accused us in that press conference most of it was i want all the facts. let's work together, put the facts -- let's see what they really have so we can either work together with them, refute the allegations that they have. we're just trying to be fair. give us the facts and we'll work with them. i don't think they wanted to give us the facts, if there are any facts. they want to go to court. i'm trying to stop that. i want to work with them and resolve any problems. but, megyn, i'm going to tell you one thing, i'm the elected sheriff of maricopa county.

the four million people i'm responsible for, i don't work for washington. they're taking on an elected sheriff, not a police chief, not a bureaucrat. but on the other hand, with all my years with the justice department, i want to get this resolved. and for all those critics that demonstrate in front of my office for three years, i'm going to announce right now on your show, on your show that i'm running again for sheriff for my sixth four-year term. so maybe they're going to have a bad day, all these critics against me. megyn: sheriff joe arpaio, always interesting talking to you, sir. thank you so much for being here. >> thank you. megyn: all the best. well, a family's suv drives off the road and gets trapped under several feet of snow. the pictures show the hopeless view from inside the vehicle. in three minutes, the parents talk about the miracle that saved their lives. [ male annouer ] juice drink too watery?

♪ feel the power my young friend. mmm! [ male announcer ] for unsurpassed fru and veggie nutrition... v8 v-fusion. could've had a v8.

megyn: well, a texas family is now speaking out after cheating almost certain death. they were trapped in their suv under four feet of snow. sally mcdonald with our houston fox affiliate kriv has their unbelievable story. >> outside a home in league city -- >> that's a ding. >> this red yukon bears the scars -- >> this is where the rescuers busted out the window -- >> of what became the miracle on u.s. 56. >> for the first time in my life, i had zero, zero control, and i knew that whatever happened was in the hand of god. >> the week before christmas yvonne and david higgins drove to new hampshire with their 5-year-old daughter -- new mexico with their 5-year-old daughter, hannah. >> we had my tablet, and we were watching all the models of the storm coming in. >> they thought time was on their side, but pretty soon the higgins' suv slid off the road in a blizzard and became buried in four feet of ice and snow.

>> i believe i mentioned to my wife that eskimos survive in igloos. >> right, but they have little openings. [laughter] >> reporter: the first few hours the family, bundled up in ski clothes, watched dvds, ate sandwiches and cleared the exhaust to keep the car warm, but by nightfall, the doors were blocked. >> we shined our little flash light, he rolled his window down, and i rolled my win dow done, and we looked up, and then we looked at each other, and we realized that there was no way out. >> reporter: 38 hours passed inside this suv. >> the temperature started dropping, our breathing became more labored. very short breaths but hard breaths. and we were, we were struggling for that air. >> reporter: then yvonne got a cell phone signal. >> i started texting my family to give them our coordinates. >> reporter: the distress call reached state police and pretty soon the family woke to the

sound of a relentless rescue team hitting the hood. >> it's possible we probably had minutes, maybe 30 minutes left according to those rescuers. we were, we were out of air. >> reporter: david recovered quickly. hannah, turns out, was fine, but yvonne spent a week in the hospital with pneumonia. >> we appreciate every day waking up a lot more. we don't take it for granted because we were given a gift of another chance. >> reporter: a chance to spend another christmas as a family. the holiday season sometimes inspires miracles, and the higgins are trying to hang on on to theirs a little longer. megyn: wow. our thanks to sally mcdonald with kriv for that report. well, brand new polls just out on what americans think about president obama and the state of our country. so what might these numbers suggest about the president's re-election chances? we'll break it down. and britain's royals caught up in a murder mystery. a body found on one of the queen's estates. but could the killer be tied to

other cold cases? plus, this texas teen gave police a fake name, and it led to her deportation. details of a mistake that sent her thousands of miles from home. okay, team! after age 40, we can start losing muscle --

8% every 10 years. wow. wow. but you can help fight muscle loss with exercise and ensure muscle health. i've got revigor. what's revigor? it's the amino acid metabolite, hmb to help rebuild muscle and strength naturally lost over time. [ female announcer ] ensure muscle health has revigor and protein to help protect, preserve, and promote muscle health. keeps you from getting soft. [ major nutrition ] ensure. nutrition in charge!

megyn: the largest and most powerful military force in the world is about to shrink under a new defense strategy outlined by president obama. the president says his vision of a leaner more flexible military is more realistic than the current pentagon strategy. it includes $450 billion in defense budget cuts over the next four years. >> we'll be able to insure our security with smaller ground forces. we'll get rid of outdated systems so we can invest for the capabilities for the future

including surveillance, counter terrorism, countering weapons of mass destruction and being able to operate in environments where adversaries try to deny us access. megyn: they are shifting the focus to the asian-pacific region, china. the army would shrink from its currents level of 570,000 soldiers to 490,000. joining me now, former air force vice chief of staff and a fox news contributor. i want to get your overall reaction to this. >> i think we can do this. what concerns me is what has already happened and my friend general jack king has concern. by pulling out of iraq we clearly even aimed our force

structure go down. but the fact is we opened up a pathway for iran into syria and israel that could be very dangerous and destabilizing. that's one issue that concerns me. the 490,000 -- if everything goes well, we could probably live with. but what is not mentioned in the conversation is secretary gates canceled the f22 which is much more capable for a china deterrent strategy. he canceled and delayed the next generation bomber. and he bought a smaller tanker. you need a large tanker if you are going to operate in the pacific. so i'm not sure there is a colearn i in -- i'm not sure there is a coherentsy that matches the strategy. megyn: they say we can't afford the win-win strategy of being

able to fight two wars on the ground at once. we have to cut somewhere and one administration official said look at libya. we fought that conflict whatever you want to call it, without boots on theground. we can do other conflicts the same way. >> i believe we can fight certain conflicts without boots on the ground. there are places with boots on the ground in south korea or central europe where the indigenous forces have boots on theground and we provide our overwhelming air power. since the end of world war ii we have had a naval-air power strategy. we are going back to that. and i accept that. i think we have to be cautious with the situation in iran, then number one trying to get nuclear weapons which is unacceptable, and i do not recommend u.s. troops there. i recommend covert action.

and iranians want to go back up the syrians and bashar al-asaad so they may kree aid proxies in a war against israel in the coming months. megyn: you think we need to be ready for that with possible ground troops. you are worried about the effect this will have on the more real real -- on the rorale of our troops. >> you have got to be careful how you are doing it. we are putting them into an economy that is a poor economy. if we docket view voluntary retirements and a host of other people wants to go leave, that's fine, but i'm not sure that's going to be fast of any with the time lines they have. so it's very worrisome what we do to the more -- morale of this

military. we must be cautious how we do this. megyn: we are learning the cia and department of defense are launching an investigation into whether the obama administration released highly classified information on the killing of bin laden to film makers. congressman peter king says that may have put lives in danger. the white house denies those claims. the movie was to be released right before the 2012 presidential election. but now the film is scheduled for release after the election. a worried family in texas has cleared the mystery of their missing teen and opened up some hard questions for the immigration and customs department which unknowingly deported a dallas teenager, a

u.s. citizen, to the country of clom what. the 14 -- the country of colombia. she ran away from home. she was arrested for shoplifting and the problem started because she gave a fake name to police, opening the door to her being sent out of the country. she happened to choose the wrong name, trace. >> reporter: and the wrong country. her grandmother says she ran away from home because she was distraught over her grandfather's death and divorce of her parents. she was arrested for theft. she gave the cops a fake name. they turned her over to immigrations and customs enforcement. she is a 14-year-old african-american girl who does not speak a word of spanish. she made her way through the court system using that phoney name. she was deported to colombia.

she got a job as a maid. her grab mother tracked her down by her facebook post. authorities picked up the girl, but now they won't release the girl from colombia and the grandmother is irate at federal authorities saying they didn't do their work. how do you deport a teenager and send her to colombia without a passport, without anything while immigrations and customs enforcement is responding with a lengthy response in part that reads, as is standard protocol, criminal databases were searched and revealed no information to invalidate her claims. in essence they are saying she gave a phoney name, she is 14. there is no real record of her so there is nothing to say she is not this girl from colombia, she us what dallas, texas. u.s. authorities are working with the colombian authorities trying to get this girl freed

and they are investigating to find out what went wrong in processing this 14-year-old girl and putting her on a plane to colombia. megyn: we also have new developments in the murder mystery at queen elizabeth's estate. british police are awaiting for the results of dna testing on the victim as they work to identify the young woman as they continue looking for links to several cold cases involving missing women. darren little just filed this report. >> reporter: for a second day running no concrete news from the police as to the identity of the woman whose body was found on the queen's sandringham estate on new year's day. tests that tried to prove identity using dna. we are told which norfolk police that they have no news on further tests being carried out to establish the identity of this woman.

her body being found a couple miles from the queen's sandringham residence. the police tell us they are expecting to brief the media more fully in the morning. so maybe then we'll have these latest test results back. the likelihood is this is a lithuanian woman or latvian woman. she went missing the end of august from a town close to the queen's residence. the lithuanian woman is outside of the profile it, a white woman age 15-23 years old. she was found in a wooded copse, two miles from the queen's sandringham estate. it's where there was a shooting party over the christmas period. but they did not find her body. the body was found by a dog

walker new year's morning. megyn: our thanks to darren little with our sister net swork sky news with that report. the 2012 candidates aren't just fighting with each other. the close split in the iowa caucuses, they are fighting for the soul of the republican party. the republican party chair joins us next on what that means. a teenaged mother shoots an intruder inside her home to save her baby all while on the phone with a 11 dispatcher. new details and questions are emerging about exactly what happened in that house. that's on the docket in today's "kelly's court." >> i am in the home with my infant baby. i have two guns in my hand. is it okay to snoot they come in the door? >> i can't tell you you can do

that. but you do what you have to do to protect your baby. t ahead of! 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'. [ female announcer ] live the regular life. i'm really glad we took this last minute trip! you booked our room right? not yet, thanks for reminding me. wait, what? i have the hotels.com app so we can get a great deal even at the last minute. ah, well played sir. get the app. hotels.com.

megyn: could mickey mouse be weighing in on the violence in mexico. disney cruises said it will be dropping four of los angeles to the mexican riviera cruises. the travel experts say the cancellations are a sign of a weakening demand for mexican cruises because some passengers

are concerned about the growing crime problem south of the border. newt gingrich is talking with voters in lancaster, new hampshire. rick santorum is on his way to concord and mitt romney has a campaign event incalina. all three are talking up their conservative credentials. the sense that a lot of voters are undecided who to back in this race we are watching what appears to be a battle for the soul of the republican party. we have the chair of the republican national committee. there has been a lot of talk about how tight the split was between romney and santorum and even before iowa this discussion had gone the started about whether we are looking at a republican part i moving more toward true conservative

ideology, toward -- i don't want to say the hard right of the party, but as a true conservative ideology or one that's more moderate. do you believe that is in fact the stake of this nomination? >> i don't know if i would agree that's what the stakes are in the nomination. but the republican national committee platform is one of the most well-written conservative document anyone could read. it is a conservative document. i would say in all of this, the premise of the question is a touch primary that will be close. i think it's great for our party. everyone is talking about it including david axlerod and the chairman of the dnc. i believe tough primaries and a little bit of drama is good for our party because most media is

good media. when we are talking about saving the great just country on the face of the earth from a president who hasn't fulfilled his promises i like where we sit. megyn: there are a lot of republicans wondering what's going on with the republican nomination. they want to know what's going on. do you think the reason we keep seeing different candidates surge against mitt romney from herman cain to mitt romney to newt gingrich and now rick santorum. is it that they don't believe mitt romney is conservative enough? they are not connecting with mitt romney? what is it? >> i don't think it's that. i think what you have is -- you have got a lot of good candidates and you have people who are very engaged. we broke records in iowa. i don't think it's a scenario where people are saying i don't like this candidate so i have to be for a candidate over here. i think it's a situation like going to a restaurant.

just because you don't order a hamburger doesn't mean you don't like hamburgers. it means you would rather have a chicken sandwich. i think that's the scenario. megyn: the hamburger is very popular. but mitt romney -- the romney burger doesn't seem to be appealing to more than 25%. judging by the polls it seems like the republican voters keep longing for an alternative. the latest is rick santorum. why is that? some are wondering if this will hurt romney if he becomes the ultimate nominee. >> i don't agree with the premise of the statement. i think what you have is a large field of candidates and you have candidates getting 25% of the vote in an eight-way primary. i don't think that's anything to sneeze at. iowa is the first, not the finish. the next primary might have

different results and you and i might have a different conversation next week. but all and all our base and our republicans are searching for an answer to a president they don't think is living up to the promises he made four years ago. that's what you are seeing. i think you are seeing a base that is completely engaged, a base that wants to desperately defeat a president who is intent on turning us into a part of the eu. and i think that is the excitement that you are seeing. it's not that people don't like one candidate or the other. i think it's a matter of making sure we get this thing right. megyn: some folks on our panel tuesday night were suggesting 102,000 and change turnout in iowa while it was technically a record or close to, it wasn't much more than the last time around and they were questioning that statement you just made about the enthusiasm in the

republican party. if there was such enthusiasm why wasn't the number bigger? barack obama had 200,000 turn out in iowa four years ago. >> since 1980 the most republicans that have ever turned out. since 1980, the most that any iowa caucus produced was 120,000. we produced 123,000 in iowa. that's the most since 1980. we outmaneuvered the democrats at a 2-1 ratio of voter registrations. all of the new voters registered in iowa is almost completely vanished so we have taken over the voter registration advantage in iowa over the course of the last two years. if you look at polling, as far as enthusiasm. you want to talk about a feeling the president should be concerned with when generic

republicans are beating the president, when 70% of the american people say we are on the wrong track and this president hasn't fulfilled his promises in regards to the economy. those are the numbers the president should be concerned with. if he was part of any business and he made a promise as to what he would accomplish he would have been gone a long time ago. megyn: i know you will back whatever republican gets the nod. does that include ron paul and every single one of the candidates running now? >> absolutely. megyn: thank you, sir. all the best. it could be the next domestic energy explosion for our nation. helping reduce america's dependence on foreign oil. it's known as fracking and it's sparking a boom across the american west. is it also latest target for environmentalists. we'll show you what they are doing to stop it.

a massive pileup on the interstate. some 50 cars involved in the chain reaction wreck. wait until you hear what sparked it all. boeing gets ready to close up shop in wichita after nearly 80 years. why the company is leaving and why workers say they feel betrayed. >> we are talking about a company that's been here since 1938. across america, i've learned that when you ask someone in texas if they want "big" savings on car insurance, it's a bit like asking if they want a big hat... ...'scuse me... ...or a big steak... ...or big hair... i think we have our answer. geico. fifteen minutes could save you fifteen percent or more on car insurance.

my high school science teacher made me what i am today. r science teacher helped us build it. ♪ now i'm a geologist at chevron, and i get to help science teachers. it has four servo motors and a wireless microcontroller. over the last three y we've put nearly 100 million dollars into american education. that's thousands of kids learning to love ience. ♪ isn't that cool? and that's pretty cool. ♪ and during the four course feast, there's so much to choose from. [ male announcer ] the four course seafood feast is backt red lobster. still just $15. get soup, salad, unlimited cheddar bay biscuits, dessert, and your choice of 7 entrées, like new honey bbq shrimp skewers or shrimp and scaops alfredo. all four courses, just $15. [ jody ] it's really good value. all my guests love it. i'm jody gonzalez, red lobster general manager. and i sea food differently.

megyn: defense cuts forcing boeing to close a plant in witch today, kansas. it has been in that city for 80 years. boeing said it can no longer

afford to operate the plant due to the slash in defense spending. the city apparently helped them win a contract. >> we are talking about a company that's been here since 1938. i never thought it would see the air capital of the world without a boeing footprint here. megyn: poor visibility being blamed for amendment pell pileups in -- blamed for multiple pileuped in texas. it's in port arthur, 80 miles southeast of houston. the jefferson county sheriff says the smoke and fog led to the accident that left several people injured. it looks like they kept driving into each other. 10 ambulances were called to the

scene. it could be the next domestic energy explosion for our nation, hydraulic fracturing. better known as fracking. a drilling technique responsible for a massive boom in the oil and gas industry. environmentalists are targeting the industry over concerned about the chemicals used in the process. >> reporter: there was just a recent announcement in colorado that it now has the toughest regulations in the country when it comes to fracking as a result of the governor getting involved to figure out a way to make multiple entities somewhat happy. at issue is ground water and the fear it could be contaminated by the process of fluid being pumped into shale rock at high pressure. over the course of many months, the oil and gas industry

representatives along with environmental groups and state regulators hammered out a new rule that required them to reveal the chemicals going into theground, but the exact ratios as trade secrets are still protected. >> industry said this is what we have to do to protect our trade secrets. the environmental city says this is what we think the public has a right to know to create transparency for the chemicals and the compositions going down hill. through his intellectual process we got to the point where we are today. >> reporter: experts talk about the massive oil shame formation and the promise it hold for the united states energy security. 11 other states are currently working on similar regulations or have something like that in place. this is a situation where the technology advanced at a faster

rate than the rules applied to it. so expect to see much more of this. megyn: president obama and the race for the white house. coming up. 7 things that may pose significant challenges in the president's reelection bid. we'll go in-depth. a teen mom calls 911 when an intruder breaks into her home. instead of waiting for police she takes the law into her own hand and shoots the intruder dead. she says she was protecting her baby. the scientific development that takes harry potter's invisability cloak further by masking an entire event. [ male annouer ] juice drink too watery?

♪

feel the power my young friend. mmm! [ male announcer ] for unsurpassed fru and veggie nutrition... v8 v-fusion. could've had a v8. your doctor will say get smart about your weight. that's why there's new glucerna hunger smart shakes. they have carb steady, with carbs that digest slowly to help minimize blood sugar spikes. [ male announcer ] new glucerna hunger smart. a smart way to help manage hunger and diabetes.

megyn: in europe today one of the biggest volcanic explosions in decades. mount aetna, look at that. mother nature. it hasn't had this type eruption since 1992. 2012 shaping up to be a good year to buy or refinance a home. the record low, 3.9%. few americans are able to take advantage of the low rates given the economic situation. general motors fell short of its first-year goal for the cheffive volt. they sold less than 8,000 last year. president obama may face an uphill battle in 2012. there are several issues that post a significant challenge to his reelection bid.

here to talk about them with me is rich louie and wehmu green -- and jehmu green. it says it should give the democrats some pause when it comes to the president's reelection. in 2011 an age of 17% said they are satisfied with the way things are ghght country. you couple that with the number of folks who say the president should deserve reelection and it continues to be less than hama joart. concerned, jehmu? but how much? >> the numbers don't look good going into the election but the obama campaign is prepared for this. there is a reason 7,000 democrats turned out to caucus in iowa tuesday. there is also a big gap from an

enthusiasm standpoint. 300,000 democrats turned out in iowa. less than hatch of that turned out for republicans. so they will have an thus am problem. but the obama campaign built a significant grassroots operation in iowa, probably better than mitt romney did. they are together same thing state by state as the republicans move throughout their primary process. and this president is very well liked similar to ronald reagan. even as you look at the disapproval ratings. people trust him. i think this election will come down to trust, especially if mitt romney is the republican. megyn: she talked about enthusiasm for president obama in 2008, and there is no question it was there. but this is not 2008. the president has a 42% approval

rating. >> you can look at the republican turnout numbers, they weren't particularly high. megyn: it was a record. >> and you had a lot of ron paul independents coming in. the president won't have that kind of enthusiasm either. you look at the indicators. if the election were held today and you were running against a generic republican he would lose. the good news for him, the election is not today and there is no such thing as a generic republican. >> i see him as a stepford candidate. megyn: i talked about this with brian previously. why do they keep looking for an alternative to romney. >> he will be the default candidate. they decide every single other candidate for some reason is not

suitable. megyn: can we expect them to be enthusiastic in november in 2012 for mitt romney. >> i think republican voters will get ginned up because they will be so excited about the prospect of getting this disastrous president out of office and making him a one-term president. if mitt romney is the nominee they will come after him hammer and tong. i think the election will be a choice between president obama. if the public rejects him, a candidate like mitt romney. megyn: it may be tough for mitt romney to get through the gop nomination process. he talks about where the country is and that the data from gallup suggests we are center right. he says that the average in this

country are 3.3 and they put romney at a 3.5 and the president at a 2.3. so the country is closer to romney in ideology. >> i think huntsman is right at 3.3. i don't know how these numbers will be relevant. yes, when may not be under 8%, but if we are trernding in the right direction and that's what it looks like now. all of the factors are indicating that, that will play in president obama's favor. and the republican party is ridiculously fractured. that will play into his favor as well. i see this as my two favorite football games. obama is in it to win it. wish bono fence being

aggressive. ed red skins lose to themselves. >> you mentioned reagan earlier. people liked him and people have not quit on obama personally. but reagan in 1984, i think it was 7% gdp growth. there was a huge recovery going on. i think there are two clear tactics the president is using. you must run against washington which is a hard thing to do when you are president of the united states in washington. the other runs to the left on the economy. i think that's also a mistake because it is a center right country that plays to the base. but i'm not sure it's going to play with the public. megyn: it all comes down to math. we have have these high-proud discussions about issues and poll numbers but it comes down to the math of the electoral

college. they point out while they polled voters in 12 different swing states and they favor mitt romney by 5 points. back in '08 swing state party identification favored democrats by 11 points. and now the edge is down to 2 points. they still have an edge. but it narrowed significantly. what does it tell you? >> it will be a challenge. he knows that. that's why they are preparing for it. but romney has not been tested. we are about to see things get really ugly in new hampshire. south carolina. but it's bad for our political discourse and weakens our country. when you have newt gingrich on the war path for you going after governor romney -- megyn: are the republicans doing the damage to one another for the democrats? >> there is a school of thought

that contested primaries are bad things. sometimes they are. this is a consequential choice for the republican party. that's over the top and it will hurt newt gingrich. it's hurting him in the short term. the last two or three weeks of newt gingrich being utterly out of control has not been good for him and this tack will not work for him. i believe a contested tough primary will be better for whoever the eventual nominee is. i think the president has a huge problem the heart land. rick santorum who has a working class message which is important for republicans to do and is often neglected. and his whole speech tuesday night was aimed at rebutting that image of the party. that's an important element to be heard. >> santorum also said he's for income inequality. that's not going to play well

with the mainstream. he compared homosexuality with beastality. even if the conservatives rally around him it will be a challenge for president obama. >> i imagine what he was saying is in a free optimistic society you are going to have inequality. rather than having government with a boot on the neck of everyone keeping it at the same level, yes, we want to free society in that sense. megyn: charles points out that apparently the gallup poll found out the public favors pro growth policies over pro equality policies. we mayor of mitt romney or rick santorum as a nominee, which one would it have to be? >> romney's numbers have not

moved at all. the amount of money that went into iowa. megyn: which one do you want to run against. >> clearly we would want to run against the crazy, the one who has countless statement that are going to turn off independent voters. megyn: which one is that? >> that's santorum. those core positions -- i -- whatever independents stand on the issue in the general election and on foreign policy he said i need to ask my lawyers. he has not been vetted. once he has it will be an easy thing. megyn: what would you do if someone tried to break into your home while you were alone with your baby 3 months old. a teenaged mother said she did the only thing she could, she shot the guys. what prosecutors are saying about this case that captured the country's attention.

>> i'm here by myself with my baby and someone is breaking in. i have got two guns in my hand. is it okay to shoot them if they come through the door? >> i can't tell you you can do that. ♪ that's good morning, veggie style. hmmm [ male announcer ] for half the calories -- plus veggie nutrition. could've had a v8.

megyn: "kelly's court" is back in session. on the docket, a home intruder shot dead by a teenaged mom. she claims she was forced to shoot a man who broke into her oklahoma home. under oklahoma law it's legal to use deadly force against an intruder under certain circumstances. she says two men were beating on her door. she locked herself in her room and called 911. here is the audio. >> i'm here by myself with my infant baby. >> your door is locked? i've got two guns in my hand. is it okay to shoot them if they come through the door?

megyn: with no time to wait for police she wound up pulling the trigger. >> i waited until he come in the door, when he did, i shot him. what else could you do. i wanted them to hurry and get here before i had to do it. they didn't get here quick enough. joining me lis weihl and joey jackson. the prosecution has decided not to charge her with anything and in fact there was a second accomplice to the intruder and he has been charged with first degree murder. >> the prosecution got this 100% right. an 18-year-old woman with her 3-month-old son had just lost her husband a week before to lung cancer. he had all these medications, drugs for lung cancer that were in the house. she thought she had been burgized before, probably by this buy. this guy knew her husband and

had come the day of the funeral to the home and said tried to get them then. she knew who this guy was. the time that they came, she shot him dead he had a 12-inch knife, megyn. when entered her home. law in oklahoma says yes you shoot him dead. she is in the right. for the accomplice it's called felony murder. you go into something like that where a murder happens, you are responsible for that murder. it was a burglary. megyn: joey, if you are the defense attorney hired now -- i don't know -- if you are representing the family of the dead guy, that is who would be objecting to this, what is the case for prosecution? does anything smell about this case to you? >> a couple of things. on the issue as to this woman and shooting. i would never want to be in this position.

i don't think anyone would want to be. but two things concern me. one is the imminentsy of the threat. it strikes me there could have been other alternatives explored in terms of letting them know she was in the house and perhaps if they knew that they would not have broken in and wouldn't have been shot. the second is relates to the warning. n if no warning was provide. as soon as person got in the house boom they are shot dead. perhaps she should have given some warning. on the issue, on the issue of the actual person who is charged with felony murder, what is going to be at issue is whether he aid, abet, facilitated or was merely present when hisfriend was engaged in a bad act and got into the house. >> what are you talking about, warning. what is he supposed to do, hello, anybody here with a

3-month-old child? i don't think so. this was the second time he came to her home. he was trying to get those drugs of her dead husband. and she is on 911. what is she supposed to do jump out the window with her baby? megyn: there is some evidence that this guy stalked her or has followed her around at a rodeo two years ago. and then he bummed into her again at a convenience store, then showed up at her door, introducing himself as a neighbor. you tell me, are they going to argue there was a relationship there? i'm not suggesting there was. you know how they will try to argue this. the go who gets charged with first degree murder is going to argue this or the family of the dead guy will. >> you have a person charged with first degree murder and all indications are from her perspective that he was also knocking on the door attempting to get in. therefore he has to be defended in the best possible way.

>> good luck with that. it's called plead out. megyn: we'll be right back. don't go away. we can start losing muscle -- 8% every 10 years. wow. wow. but you can help fight muscle loss with exercise and ensure muscle health. i've got revigor. what's revigor? it's the amino acid metabolite, hmb to help rebuild muscle and strength naturally lost over time. [ female announcer ] ensure muscle health has revigor and protein to help protect, preserve, and promote muscle health. keeps you from getting soft. [ major nutrition ] ensure. nutrition in charge!

megyn: move over harry port. scientists make the concept of an inadvisability cloak -- an invisibility cloak and make an entire event impossible to see. trace gallagher has more. >> reporter: i'm going to try to make this as simple as i can it's like take a high-powered

light and punching a hole through time to create a gap in time. they explain the by saying on harry potter, we make a piece much art disappear. they can make the entire art they have and the whole event disappear by using high-power lights. we see events happening as the light from them reaches our eye. the scientists interrupted the flow of light by using high-powered fire optics that bent the speed of light so they use the light beams and edit a split second in time. they change a 40th of a trillionth second. the more they could bend time. imagine you come out and do a live shot and you are animated. instead of seeing me, you just

see what you see when the light comes out. and you kind of go away. it comes back. i now would much rather see me doing a live shot than doing that -- megyn: i like that. they should speak to the geniuses at fox news and find out how we did it with a simple camera. >> reporter: brilliant photographers in los angeles, they can make us come and go whenever we want. i know the audience would like to see less of me. so they would like to see that more often. megyn: look at this. where did he go. make him come back. nicely done, thank you, sir. >> reporter: i feel like i dream of jeanie. megyn: who couldn't use a little of that in their lives. the countdown is underway to the new hampshire primary. with polls showing the race

tightening could we be looking at another iowa surprise? call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today. :