conflict. we're going to try to work that out before we get to tomorrow's show. jon: thank you for joining us today. jenna: "america live" starts right now. megyn: fox news alert, a huge hour in the 2012 race for the white house as we witness dueling speeches in a key battleground state by the president and the man who wants to replace him. welcome to "america live," everyone, i'm megyn kelly. screen left, president obama headed out to give what his team calls a framing speech contrasting his economic agenda with that of governor mitt romney. screen right, governor romney getting ready to speak with voters just five minutes after the president is supposed to begin his talk. we expect both men will address our soaring deficit, but today's dueling events also come as we get some troubling news on the economy. the number of americans filing for first-time jobless benefits has gone up again to 386,000 last week, that is well above where we need to be to signal a

healthy jobs market. and it is just another sign that our economy right now is not on the track we would hope. the monthly job gains has steadily gone down every month this year. you see january when we were at 275,000 jobs added, look at it since then, going down every single month to a low of 69,000 in the most recent month of may. that is a trend that has to be troubling for the white house and one that we are now seeing reflected in several polls. chris stirewalt is our fox news digital politics editor and host of "power play" on foxnews.com, and i want to go through a couple of these with you because if you look at these economic polls across the board, they tell the story from the people's minds that we see reflected on that downward jobs projection. take a look at the fox news poll showing when it comes to encouraging job creation, the voters favor romney over mr. obama by seven points. reuters poll, romney stronger on the economy by three points, a

little tighter there. rasmussen national poll now puts romney at 50%, president obama at 42% when it comes to who do you trust to handle the economy, and when you go state by state, you see a similar trend. you tell me, can we expect -- and we'll get to these in a minute, these other ones -- but you tell me, chris, can you expect those polls to get any better before that chart with the downward from jekyll ri -- trajectory gets better? >> and that's exactly it, megyn, and that's exactly what the president is trying to do today is he's not giving a framing speech as much as he's giving a reframing speech. he wants to reboot. he needs a startover because, certainly, this cycle has not worked out well both from a tactical perspective as the campaign and the whole obama team tries to deal in short-term tactical thinking with these bits of news that come each day, those numbers that you had on your chart there about the jobs

numbers what the president is trying to do now is say, okay, i got that this did not work, the opening phase of this election cycle was bad for me. the clinton democrats are complaining loudly, there's problems inside my own party, so let's reboot and start over. the question is, can you really start over in a climate like that one? megyn: we're looking at live pictures here as we await these dueling events. just the optics are interesting, chris. can you take us behind this at all? is this by sent that the two men -- accident that the two men would be in the same state at the exact same time of day? [laughter] >> that may be a coincidence, i tend to think not. certainly, this is evidence, megyn, of what mitt romney is trying to do, and he is being very aggressive with the president. wherever the president goes, romney goes -- in politics you call it bracketing. this is a deliberate strategy by a very aggressive romney campaign. a much more aggressive campaign than a lot of us expected. they have really tried to stay in the president's face and not let him have any clear shots at

the news cycle so that romney is always in the discussion too. megyn: now we're being told that president obama will not announce any new initiatives in this speech today, so it's a reframing, as you say, it's going to be the same sort of messaging we've heard from him before. that hasn't worked so far, with all due respect to the president. if it were working, he would be doing better off in the polls one would assume. so how does the president change that now, chris? i mean, we saw, you know, the analogy of the republicans are the ones who drove the car into the ditch, and now they want the wheel again. we saw we can't wait for this do-nothing republican congress, we saw the blaming bush thing. but none of that seems to be resonating and so if president obama's going to go out there and just sort of have a redo of those same messages, why do they expect different results? >> well, they're hoping that they have now done enough damage to romney. remember, these tens of millions of dollars that they've spent going negative on mitt romney in the opening phase of the

election, now the president wants to sort of turn the corner now and start the next round of prosecuting romney. but i will say this, and we've talked about this before. this is as much a reeducation effort by president obama as it is a campaign because he is doggone determined that he is going to sell to the american people the idea that stimulus, finance through deficit spending and increased taxes on top earners, is a good idea. people aren't in for that. they don't think that the 2009 stimulus of his worked, but he's going to continue to sell this. he is very dogmatic about it. i don't know why he is holding on to it so tightly, but it's pretty clearly their decision. megyn: and on the other side you've got mitt romney who we saw through all of the 20-plus gop presidential debates was sort of the slow and steady eddie, right? he never had the dazzling 9/9/9 plan, he never had the quick -- [laughter] he's got like a 59-point plan

that nobody's read. [laughter] so, but it's a strategy, is it not, to sort of just keep a straight line, you don't have to dazzle, just don't, don't mess it up. >> he just wants to be that ford taurus that people look at and say that's a reliable car that's going to get me where i'm going. he doesn't want to be a jaguar, he doesn't want to be something that makes your heart pound, he wallets to be something that's reliable, that you know -- and has good gas mileage. [laughter] megyn: thanks, chris. i love it when we do the car analogies. they work. thank you, sir. [laughter] well, we'll be watching these reports, and we're going to bring this to you. we also have some mixed news on other important parts of the economy. food prices have remained flat with grocery costs slightly down, but restaurant prices a little higher. at the gas pump prices have tumbled, about 40 cents from their peak in april according to aaa. the current national average is now $3.53 a gallon, but you can expect that the housing market

may get worse. lenders are starting to go after more homeowners who are not keeping up with their mortgage payments. the foreclosure listing service, realty track, says the number of homes getting default or home auction notices -- that's not what you want to get -- went up 12% from april to may. any or all of those issues likely to be mentioned by the president and by governor romney today. what an interesting scene this is with the two men who want to be or want to remain in one case chief executive of this country will try to make their case to the american public as to why they, each one s the best man to be at the helm for those the efforts. we will bring you part of these speeches, and we will speak with some of our favorite pros on the economy in the reaction to both just ahead. new developments today in that shooting at a hospital in upstate new york. a massive manhunt is underway for timothy jordan. he's a 49-year-old trauma surgeon and former military

weapons expert accused of shooting and killing a receptionist at the erie county medical center in buffalo. trace gallagher live at the breaking news desk with more on this. >> reporter: and now, megyn, police are indicating that dr. jordan may have been planning this for months, losing 75 pounds and growing a beard to alter his appearance and creating a very carefully-planned exit strategy from the hospital. and in the ceiling tiles above dr. jordan's office they found rancid fast food containers and dirty laundry indicating he may have been living there for months. now, police believe jordan lured his ex-girlfriend, jacqueline, into a stairwell at the hospital and shot her point-blank several times. now, he was seen fleeing the building, but all four of his cars are accounted for, so the word is that maybe he had a fifth escape vehicle, a getaway car kind of planted somewhere on the hospital grounds. now, friends of the victim say that dr. jordan and the victim had a very rocky relationship,

that jacqueline thought that in the past four or five months that he was actually spying on her. dr. jordan did have two domestic violence allegations against him, those involved a different woman back in 2003, but neighbors say that is not the man that they knew. listen. >> he is the calmest, easiest-going, friendliest guy you can imagine. i find it hard to believe, i mean, the facts will come out, but knowing tim as i have it's got to be close to six years now, i've never seen him angry. ever. >> reporter: we should also point out that one of his neighbors yesterday at 9:30, about an hour and a half after the shooting, megyn, heard a gunshot near his property, so the police were scouring the land to see if maybe dr. jordan had killed himself. we should also point out that he is a weapons expert, he's on the run, very smart guy and cops believe he could be very difficult to capture.

megyn: wow. trace, thank you. well, hbo is doing some serious apologizing after one of its top shows uses what looks like a model of former president george w. bush's head for a grisly decapitation scene. they have the head posted on a stake. but the controversy does not end there. we'll update you. plus, a major debate following reports that the feds are using drones to spy on ranchers and farmers. what one senator is now proposing to protect the american people's privacy. and controversial ads like this are starting to show up in the war against expanding waistlines. but in three minutes we'll show you how a local ban on supersized sodas here in new york has turned into a nationwide food fight over government regulation. >> our administration is saying to every new yorker, you are not alone. we are absolutely committed to doing everything in our power to help you get on track and stay on track to maintain a healthy

lifestyle. because this isn't your crisis alone, it is a crisis for our city and our entire country. c'mon dad! i'm here to unleash my inner cowboy. instead i g heartburn. [ horse neighs ] hold up partner. prilos isn't for fast relief. try alka-seltzer. it kills heartburn fast. yeehaw! that's good morning, veggie style. hmmm. fohalf the calories plus vgie nutrition. could've had a v8.

[ music plays, record skips ] hi, i'm new ensure clear. clear, huh? my nutritional standards are high. i'm not juice or fancy water, i'm different. i've got nine grams of protein. twist my lid. that's three times more than me! twenty-one vitamins and minerals and zero fat! hmmm. you'll bring a lot to the party. [ all ] yay!

[ female announcer ] new ensure clear. nine grams protein. zero fat. twenty-one vitamins and minerals. in blueberry/pomegranate and peach. refreshing nutrition in charge! ♪ try to understand i will always care. >> smoking, it will suck the life right out of you. megyn: that makes you want to light up, doesn't it? that's the point. some of you may remember ads like that and some of the graphics like that as the national anti-smoking campaign picked up steam in the 1990s. fast forward to today, and we are starting to see similar shock ads in a campaign to fight obesity in the new york city. this is one of those ads, it was actually created a few months ago, for the new york city department of health linking large, sugary sodas to

amputation. this gentleman appears to be missing part of his leg. he wasn't, he and now not only s the city's department of health signaling support for the mayor's ban, but there is now talk about going after items like supersized popcorn and over high-calorie favorites, and that has become a flashpoint in a growing argument over government regulation and how far they should be able to go in regulating what you would like to eat. joining me now, meme roth, founder of the national action against obesity group, also denise albert, co-founder of moms in the city.net and attorney doug burns because we want to talk about the legalities of this as well. ellen degeneres does this great skit where she imitates you going to the movie theater, and she's like, is that the largest you have there? that bucket? [laughter] that's it? all right, but it may be bad for

you, but it's delicious, and the question is whether mayor bloomberg or those on the city council who now think his ban on this is so great that they want to get rid of this too has the right to to be telling us. denise, let me start with you. >> this is why i go to the movies, and i don't share -- megyn: and it's why they let you watch the movies in the dark. [laughter] >> right. but, you know, the flip side of it also is we sort of live in an oversized nation. we are accustomed to that. but we do it in a way that we are now, we do it for monetary reasons also. so i might buy that for my whole family. so in order to get -- and this is what we're used to -- megyn: what if you don't? what if you think a thin, beautiful woman woigd like to gorge herself on this enormous tub of upon corn? >> it is not anybody's business. i will eat that and get my refills, and i think they should spend more time educating

people, you know, listen, i would want them to do this in my kids' schools and not telling me -- megyn: you're big on anti-obesity and people need to you said there are real risks to eating this way, but are you in favor of the ban, uncle sam, basically, or the feds or local officials saying no? >> i think when the portion size gets so big it needs it own seat, it may be too big. he's not banning anything, you can still have your popcorn, your soda, but maybe you have it in smaller sizes. what's funny is why isn't industry also a nanny? they're the ones trying to influence you to eat huge sizes, so they're a nanny themself. megyn: they make the big bucket, and they make do little girl size, you know, container if i want that. >> behavioral psychology shows we'll kind of just eat all that there is, however big the portion, so we have an inability

to actually manage ourselves. denise touched on that, you see all that and say look what i get for my must be. what you should be seeing is diabetes, stroke, fertility problems, possibly even birth defects defects in your future children. >> oh, lovely. >> so it would be great if we saw that and were repulsed by it and we as a society pushed back, and but we're not. we're really fat, we're really sick, and people like bloomberg are trying to make a difference. i applaud his efforts. megyn: he would argue we're at the point of epidemic in terms of obesity, and we may be aware of it and we make a conscious choice to do it or not, but what about those who aren't and give it to their children? so does he have the right to say, no, doug burns, no? >> psychologically, it's interesting. if you look at weight watchers, right? the snacks are in small bags. if you have a huge bag, you'll eat the whole thing, but when you eat the weight watchers one,

you feel like you ate the whole bag, and it's brilliant. the reality is -- and i don't take credit for this, a lot of experts and stuff, i read some articles, expert legal scholars said that for the general good, the general welfare something like this is likely to be held up in court. megyn: so he can do it. >> yes. and there's a loophole, as dumb as it sounds, and it isn't really that complicated which is, you know what? give me phi of the medium ones, please. megyn: i'd like to challenge you on the legality of that because if law is arbitrary and capricious and randomly targets one person, can you randomly target one food or one sugary soda? >> no. great argument. >> what about what you're doing in your own home? >> just quickly i wanted to say all they need is a rational basis legally which means is there a rational basis to say that people shouldn't eat that in one shot? >> right. you would have to run five or six miles to offset the calories in these sodas.

this would be impossible. megyn: how many calories do you think is in there? >> this is like five days' worth probably. this is thousands of calories, right? isn't it like -- >> and it's still worth it to me once a week or once a month when i want to do that. >> what doug touched on is there is an inconvenience factor by going back, but behavioral psychology shows we will consume less if you create convenience. megyn: we will, but why is it mayor mike's business? >> because we have forced him because we're fat, we're sick, we're not taking on personal responsibility -- [inaudible conversations] megyn: with you, mimi, and i mentioned this, denise, when you were here for the panel, and the viewers know -- >> you're the only guy here! megyn: i've got my almost 97-year-old nana, she's been heavy her whole life, never eaten well, and she would eat this, and she's doing great. she's 97 years old, so not everybody -- >> she's an anomaly.

megyn: but mayor mike would be taking it away from nana too. why does she suffer? >> she's going to have a smaller portion, she can refill it. she's 97, she can't go up and down the aisles that easily. [laughter] >> that's a good point. >> we're going to take away all of the bulk buying -- >> because people are still -- >> we're going to take it away. it's about educating people to make the right choices. megyn: oh, that doesn't work! >> it works! >> money to pay for people's amputation and end stage dialysis because contemporaries will be in mobility -- >> it's ridiculous. >> why do they have -- [inaudible conversations] megyn: look at the size of the chocolate bar too. who needs a chocolate bar this big? [laughter] i've got to go. >> you're right. megyn: but need is such a relative term. >> i want the popcorn. [laughter] megyn: step back. i'm giving it to mimi. >> we all do the exercise! megyn: panel, thank you. coming up, a major headache for

hbo after a model of a severed head that appears to resemble our former president makes a cameo in the popular series "game of thrones," and the timing could not be worse. we'll tell you why, stay with us. a party?

[ music plays, record skips ] hi, i'm new ensure clear. clear, huh? my nutritional standards are high. i'm not juice or fancy water, i'm different. i've got nine grams of protein.

twist my lid. that's three times more than me! twenty-one vitamins and minerals and zero fat! hmmm. you'll bring a lot to the party. [ all ] yay! [ female announcer ] new ensure clear. nine grams protein. zero fat. twenty-one vitamins and minerals. in blueberry/pomegranate and peach. refreshing nutrition in charge!

megyn: well, the national transportation safety board is now investigating a case of dangerous and sudden turbulence that injured several people aboard flight 1632 shortly after takeoff in houston, texas, and was forced to make an emergency landing in louisiana. a flight attendant was serving drinks when the force of the turbulence sent her flying into the ceiling and back down to the floor. she is hospitalized in serious condition. a total of six people were hurt, the pilot said in all of his years of flying he has never

seen turbulence as bad as that. well, new outrage today over a scene in hbo's hit series "game of thrones." at least one republican politician is calling for a boycott of the show for using a prop that resembles president george w. bush's head on a stick. trace gallagher live in our west coast newsroom. trace, my husband has recently drawn me into this series which is, like, i watch half of it like this. but they have heads on stakes in a lot of scenes, you know? it's like they're all posted outside of the castle, and it's random heads, and then you tell us what happened. >> reporter: well, look, i read all the books, i haven't seen the tv show, megyn, but, yeah, it's very graphic and violet, and they're issuing apologies all around, but a lot of critics do not believe 24-6s unintentional concern it was unintentional. in the show the theme is the daughter's being shown the head

of her father. she looks up, she sees her father, and she also sees george w. bush. the creators say they never noticed it, never saw this thing until an online review site pointed it out, and during their dvd presentation they also pointed it out. listen. >> people may not have noticed they should back up the last head on the left is george bush. >> george bush's head appears in a couple beheading scenes. [laughter] it's not a choice, it's not a political statement, we just had to use what heads we have around. >> reporter: yeah, the heads we have around. they went on to say, quote: we meant no disrespect to the former president and apologize if anything we said or did suggests otherwise. well, hbo which, of course, runs this, took the apology a step further because, as you know, tonight they are premiering the story of george h.w. bush, 41. their apology says, quote:

>> reporter: well, the chairman of the brooklyn gop says the show should be boycotted altogether. he says, and i'm quoting here: >> reporter: he went on to say that he would never condone president obama's head being impaled for some television show. megyn, we are still waiting for other response. megyn: all right. can i tell you that this, i, actually, we're a little behind in the series, and we just saw this exact episode, and this was one of the scenes i was doing this, and i missed the whole thing because i don't like violence, but it's got some good storylines, you know, in it. i want to ask you this. the defense as i heard it in was we have to use the heads that are around. are they suggesting it's a cost issue? because i have picked up in my limits exposure to the series

that cost doesn't appear to be an issue. >> reporter: no, it's extravagantly done but, yes, they're saying they use a production company, and they use body parts all the time from this certain production company. they don't really have time to go back and check to see what they all are. this happened to be a head lying around, and they just used it never realizing until it was pointed out by an online site. that's why a lot of people don't believe it. megyn: if you watch this production, it is elaborate. it's tough to believe that they had to cut corners and just use a, you know, a likeness of the former president because they needed to save the $20. we'll let the viewers decide on that one. are the books less violent? i'll tell you what, i can't take torture, and it's got a lot of torture. but it's good. >> reporter: the books are very violent, but they don't have former presidents' heads on -- megyn: when they say adult themes, nudity and violence, take them seriously! all right, trace. [laughter] well, new concerns over

recent classified intelligence leaks and the two men named by the doj to investigate them. we'll tell you why some people are asking whether this pair will be able to deliver an unbiased investigation wherever the evidence leads. and as we await dueling economic speeches in a key battleground state, we will analyze whether we can get anything new from president obama or governor romney. and why the president believes that their plans, the two men's, will present two fundamental choices for the voters. >> the president believes that this election is a fundamental choice between two very different visions for how we grow the economy, create middle class jobs and pay down the deficit.

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megyn: well, developing right now in the key battleground state of where president obama and governor mitt romney are about to deliver dueling remarks on the state of this country's economy and how to fix it. the president is set to begin speaking at 1:45 at a community college in cleveland and just a few short minutes later, governor romney is set to deliver remarks at a manufacturing company in cincinnati. it is a reminder of how important both men understand accurately how important the state of ohio is, and both men understand that at a time when polls suggest support is flagging for the president's handling of the economy. so will this speech today manage to start turning that trend around?

we will keep an eye on ohio and have analysis from our panel coming up. we're learning more today about the two people -- not these two, but these two are coming in a moment -- the two people appointed by the department of justice to lead the investigation into a series of intelligence leaks. it comes as a growing number of lawmakers suggest that this information that was leaked came directly from the white house. that is the speculation, not yet proven. here are the two guys who are going to lead the investigation to figure out where the leaks came from, u.s. attorneys. they will investigate what some have called some of the most serious leaks in recent history, but now some conservative bloggers and others are raising concerns about whether this team can lead a truly unbiased investigation. it's not just bloggers, we've heard some concern from lawmakers. simon rosenberg is president and founder of ndn, a think tank, and he is also a former campaign adviser to president clinton. marc thiessen is a fellow at the american enterprise institute

and a former speech writer for president george w. bush. guys, welcome. eric holder has said i'm going to appoint these two u.s. attorneys -- those are federal prosecutors, basically -- to investigate where the leaks came from, and wherever the evidence leads, and that's fine by me. now folks are upset because one of the guy is the a republican appointee, but one guy was appointed by president obama and has described president obama as a legend and was one of the first people to donate to president obama's senate campaign and to his presidential campaign and, marc, the allegation is that how can we trust this guy, ronald machin, to be objective in investigating, you know, what may be a leak close to the man he thinks is a legend? >> absolutely. look, i think it's in the administration's own interest to appoint a special counsel. i mean, they stand accused of having leaked highly-classified information in an election year to help the president look good for the november elections. the last thing they should want

is to have even the appearance that they are somehow politicizing this process. and appointing a man who, as you point out, called obama a legend and who gave to his first senate race, who gave to his presidential campaign and helped him vet vice presidential nominees is just plain stupid. and on top of that even if he is independent, which he very well could be, he reports to the attorney general, an attorney general who may soon face contempt of congress charges and has been discredited on capitol hill. what you want to have is an independent counsel who answers not to the attorney general, but to an independent judge whose independence can't be questioned. and by the way, that's what all the people objecting to a special counsel now said when it came to the valerie plame case which was a much less serious situation. so if it was good enough for valerie plame, it should be good enough for the leaking of this fact that we launched a cyber attack on iran to "the new york times." megyn: back when valerie plame's

identity was leaked, simon, there were at least two democrats who wanted an independent counsel, who did not want a special prosecutor or u.s. attorney as we've seen in this case, they wanted independent counsel, and they were then-senators barack obama and joe biden. so there is a question now about whether, you know, turn around's fair play and now that they're on the receiving end of these accusations about improper leaks, whether they should subject themselves, their administration to an independent counsel as well. >> so three quick points. one is it's clear the administration's taking this very seriously, they've moved quickly, they've been working with congress, the fbi has already been dispatched to begin the investigation, so there's an enormous amount happening. second is that i think one of the lessons from what happened in the valerie plame investigation was that the independent counsel, it didn't work. the statutes that are in place, you know, after all those investigations, all the depositions -- marc probably knows many people who went through a very difficult time back in the white house -- what did they end up getting scooter

libby on? obstruction of justice. they couldn't even prosecute him because the statutes are so weak. and what might be a better use of all the time of congress right now is to look at from a legislative standpoint a way of putting more teeth into these statutes so that we don't have these incredible waste of time in an election year right when this thing is going to get politicized no matter what we do. and i think that the statutes themselves, megyn, you're a lawyer, right? are not strong enough to really insure an independent counsel and all the time into it will be worth the time and effort. megyn: well, you know what caught my eye today, marc, is that andrew mccarthy, i mean, he's a conservative guy who writes for national review online, he and some others like him have come out and said this is sort of pointless. this is a political gaffe or error or, you know, miscalculation by the administration if anything. it is not a criminal matter. you're not really going to be able to prosecute leakers here whether you have special counsel or u.s. attorney, independent

counsel, whoever you have. it's a political matter, and that's how it should be treated by the republicans. what say you to that? >> i hadn't read andy's comments, so i'd rather not comment on what he said, but this is much more serious than the valerie plame manner. valerie plame wasn't even a covert agent, and so this -- the director of national intelligence and senator feinstein both have said these are the worst leaks they have seen in their entire careers in the intelligence world. you're talking about leaking the name of a source who led us to bin laden, you're talking about leaking the fact that the united states with the help of israel was in the lead in launching a cyber attack on iran -- megyn: i apologize for interrupting you, marc, but now we're going to go to governor romney. we've been waiting for this, and we want the dip into these remarks. we're going to have our economic panel react, and then we'll go to the president shortly after. stay with us. [applause] >> he's going to be saying today that he wants four more years. he may have forgotten he talked about a one-term proposition if

he couldn't get the economy turned around in three years, but we're going to hold him to his word. now, i know that he will have all sorts of excuses, and he'll have all sorts of ideas he'll describe about how he'll make things better. but what he says and what he does are not always the exact same thing. and so if people want to know how his economic policies have worked, why they can talk to their neighbor and ask whether things are better. talk to the 50% of college kids graduating from college this year that can't find a job. they can talk to the people who represent the unemployed. the president said that if we let him borrow $787 billion for a stimulus, he'd keep unemployment below 8% nationally. we've now gone 40 straight months with unemployment above 8%. but then he'll say, well, but the things he's been doing have been good and helped create growth and put people back to work. oh, really?

go check on that. go to small employers or big end ployer -- employers that you know in your community. talk to people like ken or dave, talk to other employers in this room, talk to people you know that run a retail store or a small manufacturer and say did president obama's policies help put people back to work? or did they make it less likely for you to hire people? and i have a prediction to make, because i've been doing that all over the country. and talking to small employers and big employers, and i hear day in and day out they feel this administration sees them as their enemy. they feel that the obama policies that made it harder for them to put people back to work. almost everything the president has done has made it harder for entrepreneurs to start a business. has made it less likely for businesses like this to be able to hire more people. and again, go ask business

people. you can do your own survey. anybody out there who doesn't know how to vote doesn't know who could do a better job getting this economy going can go talk to the people in the business that do the hiring, talk to the employees that want to be hired and ask them did the president's policies make things better or worse for getting jobs? let's just go through them one by one. that stimulus didn't work. that stimulus didn't put more private sector people to work. how about obamacare? the president said the other day that he didn't know that obamacare was hard for small business. oh, really? the chamber of commerce carried out a survey some 1500 businesses across america, 75% of those people surveyed said obamacare made it less likely for them to hire people. think of that. then there was this financial regulatory reform, dodd-frank.

you've got some bankers, go to our credit union or bank and ask them, did dodd-frank help you out? the did it make it more likely for you as a bank to renegotiate loans for people with small businesses or with mortgages? did it make it easier to make new loans, or did dodd-frank make it harder for you in the banking business? what you're going to hear is that small business was not helped by dodd-frank, and small banks and community banks weren't helped to make loans because of dodd-frank. then there were the president's energy policies. now, i know today he's going to talk all about how he's going to really give a boost to energy. but talk to the people in the coal industry and ask whether his regulations have helped them mine coal and what they'll tell you is on almost every front he's made it harder to get coal from the ground and made it less likely for people to be able to use it. as a matter of fact, as a candidate he said if you build a coal-fired plant, you'll go

bankrupt if his policies are implemented. so we're not taking advantage of the coal we could. how about gas? go talk to the people in the natural gas world and ask them what it's like under the obama administration. they'll tell you that the administration has tried to push itself into regulating the production of natural gas in such a way that it's less reliable and harder to use our gas. talk to the oil people. they'll tell you he put a moratorium on drilling in the gulf. can't drill in anwr, aren't drill anything the outer continental shelf off of virginia, and all three of those resources that we have in abundance, this is a president that's made it harder for us to create job there and to get low-cost energy to manufacturers like this one. and then there's one more. you don't need to ask people about this one, you already know the answer. did he get that pipeline in if from canada? no. i can guarantee you if i'm president on day one we're going to get the approval for that pipeline from canada, and if i have to build it myself to get it here, i'll get that oil into

america. [applause] megyn: that's just a flavor of governor romney's message from cincinnati, ohio, where he is going after the president's policies one by one, trying to show how they've hurt, in his judgment, small businesses in particular, but the american economy. we're going to take a quick break here. governor romney's speech is streaming online at foxnews.com during the break. back in three minutes, now, with some of our favorite pros on the economy, and the president's speech is just moments away. we're going to have perspective on all of it. stay with us.

>> did president obama's policies help put people back to work, or did they make it less likely for you to hire people? and be i have a prediction to make -- and i have a prediction to make, because i've been doing that all over the country. and talking to small employers and big employers, i hear day in and day out they feel this

administration sees them as their enemy. megyn: governor mitt romney speaking moments ago at a manufacturing plant in cincinnati, ohio, as we wait for the president to make similar remarks, although same topic, i should say, very different message. doug schoen is a former adviser to president clinton and a fox news contributor, barry gibbons and matt mccall is president of penn financial group. vera, i'm going to start with you on this. mitt romney seemed a little bit more focused, but he was ticking off the things he believes have hurt small business in particular in this country on president obama's policies. >> same old stuff, right? as you mentioned one by one, he's pointing out all of the deficiencies, we've been over 8% on the unemployment rate for over 40 weeks -- month, excuse me. kids can't get a job, people are losing their homes. he's just continuing to point out the deficiencies, all the reason for obama to change his messaging and leave with the whole stick with me messaging behind once and for all. megyn: i want to ask you, matt,

we're going to hear president obama say all those same things have been great for small business, and he's dug us out of the ditch. how are people supposed to make sense of this? >> when you wake up in the morning, do you feel better three-and-a-half years later or not? has obama made your life better economically? i don't think most people are going to say, yes. i mean, i love how mitt went through and talked about the stimulus, obamacare, dodd-frank, energy. four things obama's been pushing for the last couple of years that's going to make the economy turn around and get better. those are four things that have kept the economy from breaking out. that's all overregulation. obama's big government. romney's the exact opposite. if you're sitting at home and you're confused because one candidate's saying this works, how does it feel to you? megyn: doug, dodd-frank was meant to crack down on wall street, and that was popular with some because they were sick of wall street although there is an argument it wasn't so great for business. the environmental regulations, again, that appeals to the environmentalists but not necessarily to those who create

jobs. obamacare was about helping people who are uninsured, there's a question about whether that was jobs-focused, and then there's the stimulus which the president doesn't mention that often out there. romney going through each one of them saying they may have helped in the other ways -- he probably wouldn't concede that -- but they were job killers. >> well, the top issue in this country is jobs, the second top issue is jobs, and the third issue is jobs. given that romney and obama both understand that if the length is a referendum on the president's economic performance, the president will lose. romney wants it to be just that, and obama wants to make it a contrast and a comparison, and that's what he's going to do today. megyn: he talked about obamacare in particular and cited a chamber of commerce study citing 75% of small businesses say that law makes them less likely to hire people. >> right. megyn: is that a real dynamic out there right now? >> they are being choked to death, quite honestly, about regulations, they're concerned about what's going to happen

with elections, the health care issues. they're stuck in wait-and-see mode. they don't have the confidence to make the hires. megyn: but the president did tell us believed this was going to fix one-sixth of our economy, obamacare, and that was going to help in our recovery. now governor romney is fully willing to use it against him. >> romney says talk is cheap, you know, enough of this stuff. >> obamacare's been out for quite some time, but a lot of small business owners don't know how it effects their bottom line. so when you have uncertainty, why would you hire somebody? and that's where i think obama has a disconnect. he has all these great ideas in his mind, but they sound good on paper. it's like a professor who says this is how the economy should work. until you work in the economy, it's difficult to know what will work. this looks great on paper, but in three-and-a-half years it has not worked. megyn: mitt romney has a similar advantage to what barack obama had the last time which is he doesn't have a record at least as president to be held against him. governor of massachusetts, not

the same thing, right? so he's got that advantage of not having three-and-a-half years in office against him. president obama does. if you were advising president obama, we've been showing the chart of the downward trajectory in the jobs creation since january, and it's a dramatic drop, how do you advise president obama to get around that with the american voters? >> well, what i would have done, i would be talking about the future. i would be talking about investment in infrastructure, job creation, balancing the budget, reducing the debt and deficit, embracing bowles-simpson and talking about -- megyn: bowles-simpson? >> yes. megyn: everybody's ignored that. >> that's precisely the point. the american people want a balanced budget, neither side talks about it. i would also do what he's going to do today, which is to link governor romney to both president bush and to congressman paul ryan. you will see that obama's going to see you may think i'm bad, they're worse. megyn: and what about mitt romney? because we were talking a little earlier, does he just need to be slow and steady eddie?

don't rock the boat, just criticize the other guy, talk about your 59-point plan which nobody knows, but you don't want to make too many waves, do you, when your the challenger? >> yo, i don't think that's the -- you know, i don't think that's the best approach. yes, let it be known obama's tactics didn't work. at the same time, how am i going to create jobs -- megyn: is it realistic to say i'm going to repeal or revoke dodd-frank and obamacare and half of the president's agenda? >> no. that's not realistic. i think you need to talk about it and throw it out there. obamacare, yes. dodd-frank, likely that won't happen. let's just talk about maybe less regulation, lower taxes, more free market. and -- >> general terms, but he hasn't been specific. >> exactly. >> the real question to me is will he offer a specific vision himself? i think he's decided he doesn't need to. megyn: the 59-point plan, doug. >> he'd do better with a three-point plan. megyn: or 9/9/9. all right, we'll be back with

our panel after we hear from the president in moments because we've just heard from governor romney, and in minutes you'll hear from the other side. president obama is making a dueling speech in the same state of ohio. we will take you there live just as soon as the president comes to the lectern. breaking news this hour as we learn that attorney general eric holder has just sent a letter to the congressional committee investigating fast and furious and threatening to hold him in contempt of congress. has he just blinked? is he ready to turn over the 70,000 dong -- documents which some republicans say that's all they will take to avoid the contempt procession? we'll tell you what the attorney general has just done after the break. and the white house finds itself in a gunfight with russia over reports of their controversial arms sales to the syrians and reports that assad, in syria, is then using those weapons that he allegedly got from russia to kill innocent women and children. wait until you hear what's going on now, and it involves our

secretary of state. >> why are you not saying from the podium russia must stop? >> we believe that everyone should stop providing, everyone who is providing weapons to the assad regime should halt the provision of those weapons because it only -- as we've said, providing more weapons only -- [ male announcer ] research suggests the health of our cells plays a key role throughout our entire lives. ♪ one a day men's 50+ is a complete multi-vitamin designed for men's health concerns as we age.

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megyn: 2:00 p.m. in the east. this fox news alert takes us to the battleground state of ohio. brand-new hour of "america live." welcome. i'm megyn kelly. president obama over in cleveland. he's running a bit late this afternoon. he's about to give a framing speech, according to his campaign, explaining his top-down approach on growing the economy. governor romney starting his speech 10 minutes before president obama. he just wrapped up his remarks. the governor is over in cincinnati. he was going after the president's policies and

specifically job creation record. a new jobs report today shows the number of americans filing for first-time jobless benefits meaning unemployment has gown to 386,000. governor romney in cincinnati moment ago. >> you may have heard that president obama is on the other side of the state and he will be delivering a speech on the economy. he's doing that because he hasn't delivered a recovery for the economy. and he's going to be a person of eloquence as he describes his plans for making the economy better. but don't forget, he's been president for 3 1/2 years, and talk is cheap. megyn: ed henry is live at the white house. >> reporter: these candidates are going to be crisscrossing the state of joe, particularly this area where the president is today. cuyahoga community college in cleveland. a lot between now and november. the president himself was sat

cuyahoga community college right after the 2010 mid-terms. in that speech he was mocking the fact that republican leader in the house john boehner had just been in the cleveland area framing that mid-term election talking about the economy. at that time the president said there were no new policies from mr. boehner, there were no new ideas. interesting because in the runup to the president's speech today his ownized said we should d his own aides said we should no expect no new policies from the president. it is what he calls a framing speech which lays out the difference between his vision on the economy and that of msh. bill clinton, the former president who is sometimes on message for this president, sometimes not on message, was also at cuyahoga community college around the time of the 2010 mid-terms. he said give us two more years.

if it doesn't work, you have another election in two more years. you can vote us out then. that was bill clinton at the very community college where the president is going to speak. mitt romney says the time is up. the president has had four years to turn around the economy. the president is going to try to make the case how he thinks the economy is slowly coming back and he needs more time to finish the job. megyn: we are hearing the president in the background, the tbreeghts and sal you takes. we'll d and the sal you takes in the background. the:economic news hit and the slow growth in the first quarter couple weeks ago. why right now? >> reporter: as you put your finger on the fact it has been a string of bad news for the president in the month of june.

they are trying to find something to shake things up to get him out there and not just come into the briefing room like he did last friday and answer a couple questions. he ended up slipping up by saying the private sector was doing just fine. they want to get him out there with the people, not here in washington with all the bickering and try to reframe this race. some of the attacks on mitt romney have backfired. some of the cases this president and his campaign have been make having had mixed result. this is a chance with several months to go to reintroduce what his vision is not just for the broader american people who are be watching this, but specifically in a key battleground that he has to have. megyn: ed henry, thank you, sir. we'll take a brief listen to the president. >> both campaigns give the press something to write about. i recently made my own unique contribution to that process.

it wasn't the first time, it won't be the last. in the coming weeks, governor romney and i will spend time debating our records and our experience as we should. though we'll have many differences over the course of this campaign, there is one place where i stand in complete agreement with my opponent. this election is about our economic future. [applause] foreign policy matters. social issues matter. but more than anything else, this election presents a choice between two fundamentally different visions of how to create strong sustained growth

and to pay down our long-term debt. most all, how to generate good middle class jobs so people can have confidence if they work hard they can get ahead. this isn't some abstract debate. this is not another trivial washington argument. i have said that this is the defining issue of our time and i mean it. i said that this is a make or break moment for america's middle class, and i believe it. the decisions we make in the next few years on everything from debt and taxes to energy and education will have an enormous impact on this country. and on the country we pass on to our children. these challenges are not new.

we have been wrestling with these issues for a long time. the problems we are facing right now have been more than a decade in the making. and what is holding us back is not a lack of big ideas, it is a matter of finding the right technical solution. both parties have laid out their policies on the table for all to see. what's holding us back is a stalemate in washington between two fundamentally different views of which direction america should take. and this elect is your chance to break that spell. [applause] at stake is not simply a choice between two candidates or two

political parties. but between two paths for our country. while there are many things to discuss in this campaign, nothing is more important than an honest debate about where these two paths would lead us. that debate starts with an understanding of where we are and how we got here. long before the economic crisis of 2008, the basic bargain at the heart of this country has begun to erode. pore more than a decade it had become harder to find a job to pay the bills. harder to save, harder to retire. harder to keep up with rising costs of gas and healthcare and college tuition. you know that. you lived it.

during that decade there was a specific theory in washington about how to meet this challenge. we were told that huge tax cuts, especially for the wealthiest americans, would lead to faster job growth. we were told that fewer regulations, especially for big financial institutions and corporations would bring about widespread prosperity. we were told that it was okay to put two wars on the nation's credit card. that tax cuts would create enough growth to pay for themselves. that's what we were told. so how did this economic theory work out? for the wealthiest americans it worked out pretty well. over the last few decades the

income of the top 1% grew by 275% to an average of $1.3 million a year. big financial institutions and corporations saw their profits soar. but prosperity never trickled down to the middle class. megyn: the remainder of his speech available on our online web site. in three minutes we'll welcome back our panel and talk about the competing messages. we are getting a better feel for how these two men are going at it from this point forward to november and the approach each man is going to take. we are going to talk to the economic panel and put perspective on those remarks in moments. breaking news as we learn attorney general eric holder just sent a letter to the congressional committee

investigating fast and furious. it is four paragraphs long. he has a lot to say in an effort, apparently to head off a contempt of congress vote next week. stay with us. >> i don't have any intention of resigning. i heard the white house press officer say yesterday that the president has absolute confidence in me. i don't have any reason to believe that is not the case. [ male announcer ] it's back again at red lobster,

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it's his explanation for why the economy hasn't gotten better. it's different from the approach taken by bill clinton and different from the approach clinton himself suggested for democrats. clinton always avoided partisan divisions. megyn: he talks about how we should talk about the two paths each man would take us on, first we have to understand how we got here, then went back to those policies he believes undermine our economic health. >> he went back to the blame game. so there was a little bit of the blame game, and not too much going forward. i think we didn't see him defending his economic record. but what americans want to see is what is the plan going forward. i think to some extent romney has the edge economically.

consumessers for the most part don't like either plan. but i think romney has a little bit of the edge because of the economic data. and with the fact median income is down. so romney has the edge. megyn: i think we are getting the preview of how the messaging is going. the president seems to be prepared to say the republicans drove us into the ditch with tax breaks we couldn't afford. two wars we couldn't afford. take care of the rich, deregulating business. look how that worked out. then now i stopped the bleeding. we were shedding 700,000 jobs a month. so i need more time. if you want to keep that growth albeit anemic, stick with me instead of the republican because the republicans are the ones to blame for all that nastiness i just told you about.

>> he kind of forgot the last 3 1/2 years. he didn't talk about what happened the last 3 1/2 years. things haven't gone that well. so to me -- i understand the route he's taking, the blame game. i understand that. he is also so well positioned coming out from the worst area we have been, where do you go from there? it's going up. i'm flabbergasted watching that americans at home would say, maybe the policies of the bush weren't the best for me, but right now, where are we right now? we created 69,000 jobs in the month of may. why the weekly number got worse once again this morning. megyn: he talked about the deregulations. some top democrats were criticized for being against more regulation of fannie and freddie. that's where this economic

meltdown started in the housing market. barney frank said there wouldn't be a meltdown. but he makes it sounds like it's all republicans that led to this mess. voo he wants to avoid housing because he hasn't solved the foreclosure crisis. he wants to emphasize wall street and financial issues because it drives his narrative which is class-based politics. >> is he correct it was the bush tax cuts that led to the economic melt downthat we saw in 2008? there is a linkage there? >> to both candidates are going to do the mudslinging. the point is, where are we now? we are several years into the recovery. americans don't feel any better off. we are still losing our jobs and our homes. why aren't we doing better? >> what does have it to do with the fact that banks were frivolous in some of their

actions in is no connection for what caused the recession. >> obama will say the banks have been bailed out and the ordinary have ultimately suffered. the democrats bailed the banks out. but he's going to spin this as he typically has as the ordinary guy has gotten hurt badly by policies that the republicans have driven. megyn: he focused on the middle class. if you are in the middle class or in favor of the middle class, you should be in favor of the democrats. a preview for you for november. we have breaking news in the "operation fast & furious" investigation. an offer, four paragraphs long from the attorney general eric holder asking for a meeting no later than monday with the key house committee that's getting ready to vote on finding him in contempt of congress. we have had a chance to look this over.

we'll tell you what he's offering and not offering. a case that may have dealt a blow to stand your ground laws nationwide in "kelly's court." >> you need to keep it down. >> when i go in that house and come back don't think i won't be equal to you, baby. >> things get out of hand for police officers. n who have used androgel 1%, there's big news. presenting androgel 1.62%. both are used to treat men with low testosterone. androgel 1.62% is from the makers of the number one prescribed testosterone replacement therapy. it raises your testosterone levels, and... is concentrated, so you could use less gel. and with androgel 1.62%, you can save on your monthly prescription. [ male announcer ] dosing and application sites between these products differ. women and children should avoid contact with application sites. discontinue androgel and call your doctor

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adds, holding the attorney general in contempt of congress for protecting these document is an extreme abuse of the contempt power and undermines the authority of the committee. the response calls the memo without merit. the justice department's failure

to comply with a lawful subpoena. the republican chairman darrell issa says the contempt process can be withdrawn, but only if the attorney general turns over internal correspondence after february 2012. as recently as this past tuesday attorney general holder told a senate committee he wants to cooperate with the subpoena. >> i'm prepared to make compromises with regard to the document that can be made available. i'm offering to sit down with the speaker, the chairman, with you, with whoever, to avoid a constitutional crisis. >> reporter: we learned moments ago that a.g. holder sent a letter to issa detailing the accommodations the department is willing to make and proposing a meeting to happen no longer than monday. the ball appears to be advancing. how far we don't know.

megyn: joining me, julian epstein. we wanted to get your perspective on this breaking news that just came in the past half-hour. we have the letter mr. holder has written to chairman issa. the man spearheading the contempt of congress effort in the house. as i read the letter sitting here on the set, it looks like he is willing, mr. holder is willing to accommodate the house committee when it comes to the document that speak to how d.o.j. wound up with drawing a letter they had written to congress back in february 2011 where they said we don't allow guns to walk, we haven't allowed guns to walk, these allegations are baseless. they wound up having to withdraw that because it turned out to be inaccurate. that's one of many things the house wants document on. it looks like he's going to give them those document, but not the rest of the universe the house

is pushing for. >> like you, megyn, i'm just reading the letter right now. i'm giving my first blush take on it. it looks like there will will be some accommodation on how the february 4 letter came about and events after that. but the attorney general is drawing a fine the sand and house democrats are drawing the line on the sand in other issues. the subpoena asks for wiretap information which the justice department is forbidden by law to provide. they asked for grand jury material. the justice department is forbidden by law providing that. megyn: he says the committee has agreed to no longer seek information on some of those issues. >> if there is an agreement on the law enforcement part, that's major progress. if the justice department is making -- is going to provide

more information -- they already provided 7,000 document -- if they provide more, that also is progress. that's been two of the main issues. megyn: they are seeking 80,000. there is a big disparity. >> many of those relate to ongoing enforcement actions which the justice department can't provided by law. megyn: i don't know what the numbers are. but yesterday i think it was on fox news senator grassley -- granted he's on the senate side -- he came and said what will satisfy us? 70,000 documents and nothing short of 70,000 documents. that's what we want, otherwise we are going to keep pushing this. you tell me, given your history. you were the chief counsel to this very body in the house another time. do you see this as likely to resolve in the wake of what eric holder just sent?

>> it looks that way right now. it looks as if the justice department is saying let's try to accommodate on the issues we legally can accommodate you on. the non-law enforcement material. i have seen very, very few instances whereas grassley said a committee said we want all 80,000 pages of everything regardless of whether it's law enforcement or not and congress winning. the cases where congress wins is when they have something specific they are look for. they have got a smoking gun and they are able to prevail against any privilege claims. megyn: they usually result in compromise where they don't proceed with contempt. one side gives up documents and both sides walk away unhappy. >> that correct. that's the direction it looks like it's going in. i'm just reading these letters as i'm walking in the studio.

megyn: we have been trying to read this on the fly to bring you the best information we can. they say the best negotiations are those where both sides are unhappy. we have breaking news on the ugly showdown with russia over reports that it is selling the attack helicopters to the syrian government which are then being used to rain death on unarmed women and children. we have the latest after the break. wake up! that's good morning, veggie style. hmmm. fohalf the calories plus vgie nutrition. could've had a v8. 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.

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responsibility. what's your policy?

megyn: more back and forth between our secretary of state hillary clinton and her moscow counterpart. accusations flying over russia's sale of arms to syria. choppers that were being used we are were told to rain death on women and children. russia denies that report. but secretary of state hillary clinton stands by her assertion. we showed you an image from a disturbing video we received from a social media site. we were unable to confirm the accuracy of the video about it

appears to show 10 children surrounded by their grieving families. all this happens as we meet with individual mir putin. peter brooks is a former cia officer and former deputy secretary of defense. gentlemen, what happened was hillary clinton accused russia of providing choppers to syria. russia said no, we haven't. she came out and said, look, if they are not brand-new helicopters, they are refurbished helicopters that were returned to russia and are being returned by russia to syria. does it even matter. the choppers do appear to be going from russia to syria and assad is massacring his own people. you tell me whether this is a distinction without a difference and whether the u.s. has a right to complain to russia.

>> whether these helicopters are newly sold or they were being refurbished under a contract signed between damascus and moscow in the 1990s. the helicopters can be used to kill children whether they are new or old ones. on the other hand hillary clinton yesterday by inferring this was a new sale by moscow to syria intended to put pressure on the russian government. the russian government was very quickly able to bat that pressure away saying we haven't been selling new choppers, these are old ones. putin says the west is singling out russia with unfair criticism. megyn: russia seems to be our only entre into having some say over what's happening in syria. we can't go to iran.

we do deal with russia. they have significant influence in syria. did we just blow it? >> it looks like u.s.-russian relations have gone from reset to regress. the administration talks about the u.s.-russian relations being a foreign policy success. about it doesn't look like it when you have the secretary of state pointing the finger at russia. vladimir putin will meet with them next week and the russians are hosting iranian nuclear talks next week. one thing this administration has talked about, all they have done with bend over backwards with russia is that russia would help with all these international problems and it doesn't look that way to me. megyn: americans are look at the dead babe why is and reports of women and young children being

executed door to door, bashar al-asaad's forces go around, point blank gun to the head murder the children. in the midst of the rubble, little children like her murdered by his forces. our secretary of state is trying to do something. but did she say the wrong thing diplomatically at the same time? >> she is damned no matter what she does because the russians are intractable on this situation. the tomorrow way is to take tough actions on the u.n. security council and enforcing it. they have geopolitical reasons for confronting the united states on this issue and not giving way to the obama administration and other

numerous countries want to see happen. it's unclear how it can be resolved anytime soon to save lives on the ground. megyn: do we have any clout with russia? we had the so-called reset. we gave in on certain matters that they were upset about including missile defense. that was supposed to help with us the goodwill. do we have some clout and do you think we are likely to use it to affect what's happening in syria? >> i don't think we have any clout. i think it's evidence what you see around the world, whether you are talking about iran, syria or venezuela. i don't think we do at all. russia has more leverage over us because of our failed policies with pakistan. we have to go through russia to supply our brave troops in afghanistan. putin is a very tough character. it will be interesting to see what happens next week in moscow

with the iranian talks and also between putin and obama in mexico. putin skipped the g8 summit that was held by obama at camp david last month. i think we have a new president -- actually an old president -- i think u.s.-russian relations will take a downturn in the future. megyn: does putin not care about children being murdered in the streets of syria? dose just have bigger concerns? >> i don't think it is a naive question. i think the answer to it is while he may care about dead children on the streets of syria, he cares more about his own political standing at home and internationally. a few days ago there were demonstrators over the streets of moscow objecting to vladimir putin's around the kremlin. he sees his as an opportunity to build credibility at home by

standing up to president obama and western governments and he will grab that whatever the circumstances on the ground are in syria. megyn: you set the table very well for us in terms of the stakes. coming up. it can be scary to walk to the edge of niagara falls. imagine getting on a high wire and walking across the falls. we have a report on just what to expect when that happens this weekend. plus a texas man found guilty of murder after he killed his neighbor in a gunfight he claimed the stand your ground laws applied. the jury ruled something different in a case that could affect other stand your ground cases in this country. we'll talk about it next in "kelly's court." >> i'm in fear for my life now. i'm in fear for my life. they are going to kill me. for three hours a week, i'm a coach.

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megyn: a verdict in a closely followed stand your ground case in texas. a jury finding a man guilty of murder in connection with the killing of his neighbor during a confrontation over a noisy party. rodriguez claimed it was self-defense under his state's version of the stand your ground law. in this texas case rodriguez' neighbor was having a party, playing loud music. rodriguez who is a retired firefighter went over with a gun and video camera, recording the entire event. he's heard telling the police on the phone he was in fear for his life, not long after the gun went off and his neighbor was dead. it took a jury less than 6 hours to reach a verdict. >> we the jury find the

defendant guilty. megyn: joining me now, david wahl and mark eiglarsh. this gentleman heard his neighbors having a loud party. went over with a gun to confront them, then said he knelt fear for his life. the jury rejected it outright, mark, did they get it right? >> of course they did. saying it so don't make it so. this guy learned the hard way that his ego is not his amigo. the statute specifically precludes those who provoke the victim from getting stand your ground protection. also his claim that he reasonably feared death or great bodily harm with his announcement i'm in fear for my life. stand back or i'll shoot were disingenuous. the fact that he didn't take the witness stand to testify also hurt his case.

megyn: i want the viewers to hear that where he says he felt his life was in danger. at the end is the moment that the gun goes off and the killing takes place. listen here. you need to keep it down. >> when i go in that house and come back don't think i won't be equal to you, baby. >> it's about to get out of hand, sir, please help me. please help me, sir, my life this danger now. megyn: then a gunshot goes off and the neighbor is killed. you heard the neighbor say when i go into the house and come back out i'll be equal to you, i, too, will have a gun. why did that not help the defendant. >> mark is right about him not testifying hurting his case. he went over with his cell phone

video to protect himself. he went to a lot area. the two guys who approach him drive up aggressively in a pickup truck and approach him. it's dark, it's the middle of the night. he's one guy against two. he has a reasonable fear of bodily injury or death. he says i'm in fear -- he lets the dispatch know and on his cell phone and he draws the gun to tell them i'm armed so don't do anything to me. all he wants is a termination to this insufferable noise coming from the party. and at the end you hear what happens. it does not sounds like rodriguez it sounds like the men jumping him then the shot going off. that's why it was so critical for him to explain this whole thing on the witness stand. i don't know why it didn't happen. but i expect based on fox law for this to be reversed on appeal. >> good luck with that, david. megyn: taking the side of the

defendant. what could he have done -- granted, don't go over in the first place. now that he's over there. if the guys jump him. if they say they are going to get a gun, i don't know whether they did. then if they jump him, what legally is to stop him from using the gun that he has? >> objection, your honor, asoups facts not in evidence. they jumped him? that's not what i saw on the videotape. they don't jump him. at one point where he says i'm in fear, you are placing me in fear. one guy's hands are up like this. he shot own unharmed man. and it's different than trayvon or as trayvon -- that scenario is playing out -- this is different. this can not amall -- analogized to that situation. that takes away his argument. he had every reasonable means to wait for the police to handle this loud noise or get a pair of

ear plugs. megyn: in the trayvon martin case they will argue that george zimmerman provoked it. he should have waited for you the police to go after trayvon who he thought was suspicious. that he created a confrontation. and can he use stand your ground to protect his actions? >> i think these cases are similar. zimmerman apparently broke off his pursuit. then according to him and according to facts that seem to support his story, trayvon martin attacked him and slammed his head into the concrete. in this case it looked like the escalation was simmering. you hear a scuffle. and he's videotaping everything. right after the shot it all goes blank. the video ends and that sounds like the point when mr. rodriguez was attacked. megyn: mark, how much time is

this guy facing in prison? >> life. megyn: a 36-year-old man is now dead for playing loud music. it will be a harsh sentence. we'll see if it gets reversed on appeal.

megyn: for the first time in 7 weeks the average rate on fixed mortgages is rising. freddie mac says the 30-year it 3.7%. despite the hike mortgage rates are still near historic lows. [♪]

we are in for a treat tomorrow night. when the majestic niagara falls will play host to a high-flying feat. nik wallenda member of the flying wallendas will walk over the falls on a tightrope. >> reporter: nik wallenda is 33 years old. he's the 7th generation of the flying wallendas. tomorrow he will walk on a tightrope through the two most fierce of the niagara falls. the horseshoe falls. tightrope is 1,050 feet across. it's 150 feet up. the weather is pretty bad so they are having him practice in 50-mile-per-hour winds and they are having firefighters spray

water on it to make sure he can handle water that sprays on him. abc is televising his and abc says he has to wear a safety harness as goes across. the rope he's walk on is twice the normal width that he normally walks on so not exactly the daredevil -- there is no chance of him dying. but evil knievel would be rolling in this grave. evil jumped over those busses with no safety harness. he said, i don't want to wear a harness and abc said you have to wear a harness. megyn: what ever happened to eef knievel. >> reporter: he died of natural causes. megyn: it's never been done before. there is a reason for that.

we'll be right back. a party?

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