jon: we're going to see you back here in an hour, and you're going to be talking to a presidential candidate. jenna: hit us up during the break. in the meantime, "outnumbered" starts right now. ♪ ♪ andrea: this is outnumbered, i'm andrea tantaros, and here with us today, harris faulkner, host of kennedy on fox business, kennedy, former national security council member and veteran of the george w. bush and barack obama administrations, fox news contributor gillian turner, and we're always happy to have today's #oneluckyguy, judge alex, and we remind the judge that you are outnumbered. welcome back, my friend. >> great to be back. thank you for having me. and i'd like to give a shoutout to my mom who unfortunately is

hospitalized in miami. >> why, mom? >> bad kidney problem, but she's doing better. andrea: we cannot wait to get to it. here we go. donald trump still dominating, but he may have some company. the billionaire businessman remains the front runner in the republican race for president while dr. ben carson holds a close second according to a new nbc news/"wall street journal" poll. with the backing of 25% of republican primary voters, trump -- this is his highest level of support since entering the race. carson gets the support of 22%, remaining well within the margin of error. his first place rival, marco rubio, third place. and what may be something of a surprise, look at this. carly fiorina, she's at number six. seeing her support falling fallm 11 in september to only seven points now. first let's get to trump. judge, what do you think about this? i mean, they have thrown

everything they can at that man. he's been involved in all these media back and forths, he's in one now -- we're going to talk about that in a minute -- he's still maintaining a lead. >> he is. he's the everready bunny there, he's going on and on. but i'm more concerned about the split of people who don't want to support a candidate, whether it's bush or trump, because the party seems so divided, and i think it's one of the reasons i think biden will jump in, because of hillary's problems and also because the republican party is so divided that i don't know they can get a consensus whether it's trump who ends up coming out or bush who ends up coming out. there's so much hatred on the other side for people who they feel are either rinos or establishment, i don't know the republicans can get it together to bring anybody to the winning. andrea: we see this, harris, with the republican party so often. they're always eating their own, whereas democrats seem to keep it inside the family. at that dnc debate last week, they barely took shots at hillary clinton, and people are saying, well, if trump and

carson team up, they would be unbeatable. harris: yeah. all we found out is poor bernie's tired of those damn e-mails. those are his words, mom. sorry i cussed. [laughter] to your point, judge, i'm drilling down on the numbers in the polling, and this really stands out. trump has gained ground when it comes to whether potential voters would back him. people love him, but would they pull the lever, would they click the chad? but now 59% are in that camp that say yes compared to 47% not long ago. so he's gaining ground for those people -- >> in that area. harris: you know what, on the big day i might be able to do that. >> and i -- you guys follow elections much more than i do. i follow people who go to prison, particularly the ones i send there. [laughter] but in the election area do we see this every election where there are people who say i'd never vote for a guy and then they come around later and support him, or is this something new where people are so steadfast against a particular candidate?

andrea: gillian, you've worked in two administrations, you worked for george w. bush. this election seems to be different than any other. it seems to be so anti-establishment, but also the front runner usually doesn't maintain this large of a lead for this long. so what do you think's going on besides anti-establishment? gillian: it's a crazy combination of factors this year, right? you've got folks from a diverse array of backgrounds we in other years haven't had, you know, neurosurgeons and reality stars and all kinds -- you know, business moguls all competing for this, you know, going into the primaries. so that's really kind of jazzing -- >> and i think a lot of that has to do with the fact that a lot of republicans feel betrayed by the party. you asked for the house and senate, we gave you the house and senate, and you still did nothing for us, so we want new people. andrea: kennedy, you've been not bullish on carly fiorina, but she hasn't been able to maintain this lead. she's in the single digits now. what is it about her?

i've seen editorials, the daily beast said she's bush in a pants suit. [laughter] kennedy: it's hard to define her -- andrea: but she's not. kennedy: i'll tell you what it is, it's hard to 2003 define what a fee roadway that -- hard to define what a fiorina republican is. reagan republicans, they know who they are. what does it mean to be a fiorina republican? what she's had going for her most is her debate performance. but i don't know that she's got the solid ideology that coalesces voters behind her which seems very necessary in this campaign as donald trump and bernie sanders are evidence of. andrea: all right. we were talking about that war of words in the republican party and the one between jeb bush and donald trump. well, it's getting more intense. after trump basically blamed jeb's brother, george w., for the september 11th attack. now listen to what jeb told sean hannity last night. >> his view of history is just wrong. the simple fact is that when we were attacked, my brother

created an environment where for 2,600 days we were safe. no one attacked us again. and he changed the laws, he did everything necessary, united the country, and he kept us safe. and just a tip of the hat to that and moving on to the threats today is what we ought to be focused on. andrea: okay. so i want to go to you on this, gillian. you worked for george w. bushment what are your thoughts on what donald trump had to say? gillian: i think jeb is right about the fact that donald trump's foreign policy agenda for this country is dangerous. i think he's a danger because he completely fails to understand and grasp the real constraints that are placed on the executive office. i mean, he's like a kid in a candy store who says, oh, if i was president for the day, i'd give everybody ice cream and, you know, everybody would get free gobstoppers or something. there's no reality attached to the idea. and that's the problem. >> that was a bernie sanders approach.

andrea: gobstoppers candy -- kennedy: it worked in my eighth grade school election. he said he was going to have chocolate milk gushing from every water fountain. he was elected student body president. maybe it'll work in this election. and i don't only see it from donald trump, those unverifiable claims, if i had been president, 9/11 never would have happened. there's no way of verifying that, and it's also kind of an unreasonable claim. but at the same time, you're seeing this on the left. all they did during that amateurist debate was promise to increase deficit spending so everyone got free stuff. andrea: speaking of the left too, harris, they are jumping into this as well, and they are attacking bush. and his brother for the iraq war. yesterday there was a piece in buzzfeed that highlighted that donald trump wrote about the warnings of 9/11, and trump doubled down earlier this morning. he said, look, bush was warned about this, and he didn't protect the country. who's winning?

harris: it's much more simplistic to me. the problem for jeb bush today is he's talking about donald trump. and now, apparently, so is the democratic party. but, i mean, you would expect it from them. they're actually the opposition. the problem for jeb bush is that he's down below double digits in the polling, and he is spending his time talking about jeb bush. this is a -- i mean, about donald trump. this is a win for donald trump in terms of topic. but you mentioned carly fiorina and where she has gone. we haven't seen much of her since she, what? sparred with donald trump. i mean, it's captivating how much of the oxygen in the room he can take up. kennedy: same with rand paul. andrea: not even that, he's not just talking about trump, he's talking about his brother and the iraq war. and it's not exactly the most popular not just policy position, but i would say place to be explaining being on the defensive. >> i agree. one thing jeb bush is not talking about is the things he would do and the accomplishments he had in florida. i'm a big supporter as far as what he was as governor in

florida. i think he is a good candidate for the republicans to have, but he can't get that message out there, you know? kennedy: we've gotten so far away from that discussion. i don't even think he's doing a good job of talking about george w. bush, because he keeps referring to him as my brother, my brother, which only reinforces that preconception. harris: speaking of which -- andrea: i was just going to say, thank you, harris. george w. bush on the campaign trail with his brother, and reportedly he had some choice words for some of jeb's rivals for the nomination, but not who you think. the foreman president opening up about his feelings toward ted cruz and marco rubio at a donor event in denver over the weekend, this is according to politico. one person at the event saying president bush said about senator cruz, quote: i just don't like the guy. he said that he found it opportunistic that cruz was sucking up to trump and just expecting all of his support to come to him in the end. when speaking about marco rubio's experience, bush reportedly saying, quote: he's a

young, first-term senator, i'm not sure if that qualifies you to be president. bush reportedly said, acrding to two people in the room, of course, if he wins the nomination, i'll be back here next year telling you that that doesn't matter. all right, so we've got the brothers bush, right? one's defending the other brother, then he's bringing in the brother for backup -- harris: keep it in the family. of. andrea: but he's not going after trump. harris: when you look at the new polling today and you drill down who's in third and fourth place behind trump and carson? rubio and cruz. i mean, it makes perfect sense. if the former president had -- and you would know, is he looking at that polling? you know this man. would he be the type of person to drill down, hey, look, let's go after numbers three and four? gillian: heck, yeah, i think so. it's an obligation. we all know the bushes are a close-knit family, they're very support pif of one another personally, professionally, all around, so of course he's going to step in. you know, if we ask the question is it hurting or helping? i don't know.

that remains to be seen. the bush legacy, the w. bush legacy has yet to flesh out. andrea: why do you think president bush didn't defend his own legacy? he went after cruz and rubio, and i was a bit surprise. he didn't defend his legacy, and that's the story of the day. why? gillian: my guess, and this is a guess, he's over it. he's written a book, he's done how many millions of media interviews, press, tv, radio. i mean, we're moving on to two terms into somebody else's administration later. i think he's probably ready to let history flush out the rest. >> it's unseemly to defend yourself. you're already out of the picture. i agree with jeb on that. trump can throw that out there and blame bush for 9/11, but the reality is you can know that attacks are going to come and be looking everywhere for them, but all the enemy has to do is find an opening. harris: so why doesn't jeb say that? because you're not even running, and you nailed it, right?

why doesn't he say that or say, you know what? asked and answered already. i want to talk about what i would do as president. >> well, he should. he should brush it off and get back to his talking points because nobody's hearing about him. they're hearing him defend his brother. andrea: kennedy, do you think it helps his brother when he jumps into the race like this? kennedy: when george w. bush jumps in? no, i don't think it helps at all. he's doing whatever he can to help his brother out, and i think it's pretty selfless. it would be easy for him to defend his record, but then he would shift the story to put his record more under the spotlight and make things, you know, it's hard to imagine them being more difficult than jeb is making them for himself, but he could exacerbate the -- andrea: he did make the story about him, it just wasn't about iraq. >> but it gettings the question, is cruz drafting? is he really getting behind trump and trying to ride that wind? harris: well, he's moving up. andrea: he is.

all right. israelis live anything fear as violence escalates. now isis launching a media campaign encouraging palestinians to attack israelis using any means possible. how to stop the spread of 2r0r. plus, no felony charges for a saudi prince accused of sexual assault. three women still suing him for similar crimes. so how husband royal status may be protecting a predator. we will ask the judge. and catch more from the couch, join us for outnumbered overtime by logging on to foxnews.com/outnumbered and tweet us some questions, comments. if there's more that you want to hear us get into, tell us now and we will. ♪ ♪ fight it! with jublia. jublia is a prescription medicine used to treat toenail fungus. use jublia as instructed by your doctor. are you getting this?! most common side effects include ingrown toenail, application site redness, itching, swelling, burning or stinging, blisters, and pain.

oh, epic moves, big j! fight it! getting ready for your close-up? ask your doctor if jublia is right for you. visit our website for savings on larger size.

diis critical for brain health?n brain food, hmmm. ensure has b vitamins that help support brain health - now that's smart nutrition. ensure's complete balanced nutrition has 26 vitamins and minerals and 9 grams of protein. ensure. take life in. on top of your health?ay ahh... ahh... cigna customers have plan choices and tools to take control. so they're more engaged, with fewer high health risks and lower medical costs. take control of your health at cigna dot com slash take control.

[female announcer] if the most is the staying awake part, day sleep train has your ticket to a better night's sleep. because when brands compete, you save during mattress price wars. save up to $400 on beautyrest and posturepedic. get interest-free financing until 2018 on tempur-pedic. plus, helpful advice from the sleep experts. don't miss mattress price wars at sleep train. ♪ sleep train ♪ your ticket to a better night's sleep ♪

♪ ♪ harris: well, up to this point the islamic state terrorists don't have an organized presence inside israel. but they may be looking to change that. consider this. we've just learned the terrorists have now launched a media campaign that's massive. it's like never before, posting a half dozen videos online in just 48 hours calling on palestinians to step up attacks on israeli soldiers and citizens using any means necessary. and in iraq where isis is nesting and killing, u.s. marine general joseph dunford is due to

arrive soon for the first time since becoming chairman of the joint chiefs of staff. and he is expected to get an update on the fight against isis. part of that update, no doubt, will include this news from "the new york times" which is reporting the iraqi government and the american-led coalition are finally putting military pressure on isis on multiple fronts. now, gillian, i know you have some news to bring us about this particular general and why -- and what he's able to accomplish. gillian: well, general dunford has really, i think, the trust and the esteem of the military community, the military policy-making community, you know, the military civilians that are at the pentagon. so all signs point to this is a good thing, his emergence on the scene. i think it's very telling that one of his first stops overseas is to israel. we're going to see a little bit more of a focus on the mideast peace process the last year of the administration, i think, i hope. you know -- harris: so, now, secretary john kerry is in israel. are you saying that maybe -- and i don't want to put words in

your mouth -- maybe it's better that the general went? gillian: it's a great thing they both went. harris: very diplomatic. gillian: this is at the heart of every problem we're seeing throughout the region, yemen, syria, afghanistan. it all starts there and kind of metastasizes outwards. so this is a very good thing. kennedy: now, the president has been at odds with the pentagon and some of his other generals on foreign policy and military involvement. how does general dunford, how does he fit in in the grand scheme of others who have held the job during the administration? gillian: it's interesting, because general dunford is one of these guys who, you know, he's got military chops for days, right? so that's kind of what the expectation is. when you speak to him, he's actually very pro-diplomatic engagement, pro, you know, development assistance. he takes a very comprehensive view of the issue which for solving the radical islam

problem is very important. so thoughtful leadership's going to happen. harris: well, and what's complicating matters right now, i mentioned the six videos online, these are not what you do on your smartphone. these guys are pretty sophisticated, and they have a particular message, and they're hitting particularly the palestinians, you know? pick up a knife, pick up whatever you have, we're behind you. what's the importance of that messaging, do you think? >> i think they are realizing that they can get a lot more damage done going to the disgruntled, disenfranchised youth whether it be over there in palestine or in the u.s., they can get attacks that we really can't block. we can't detect these people. there's no real chatter going back and forth planning this stuff. harris: well x they're in a dark space on the internet anyway. >> that too. we're monitoring the dark space on the internet as well, but if they can just motivate and incentivize disgruntled youth to go out and take people out, there really is no stopping that army. harris: you know, andrea, the more i hear about this, the more

i scratch my head with what secretary john kerry put up with from his state department spokesperson last week. from admiral kirby actually comparing actions between the israelis and the palestinians with regard to the recent violence and the attacks on israeli citizens. andrea: yeah. but i'm sure if john kerry was at a cocktail party in nantucket, he would probably say the same thing. i think he actually agrees with those remarks, and i think most people in this liberal administration do. i think the most important thing out of this story, harris, is that they are aligned. and by "they" i mean hamas, hezbollah, isis, al-qaeda. they all -- kennedy: iran.- andrea: their goal is to destroy the infidel, to promote radical islam and completely kill the west, kill the infidel, kill the israelis. so when you see them communicating with each other, you can't look at it as isolated groups, they all have the same mission, the caliphate and spreading their religion by the sword or by the carrot, however

you want to take it. that is how they interpret the quran. and this administration won't even identify the enemy and say that they are radical islam. so i'm not sure how they're going to be able to defeat it when they can't even name it. harris: just yesterday the israeli prime minister said what we are seeing now is a combination of radical islam and the internet. he said it's like osama bin laden meets mark zuckerberg. yeah. well, pulling out all the stops ahead of hillary clinton's big day before the benghazi committee on thursday. the furious pushback from democrats against the investigation. and the fbi is investigating how a reported teenage stoner was able to hack into the personal e-mails belonging to the head of the cia. reports the young hacker -- who calls himself under 20 -- now has his sighters on the pentagon -- sights on the pentagon next. how serious is this threat? ♪ ♪ om. this isn't the most efficient way for people

-or air to travel. awww! ducts produce uneven temperatures and energy loss. mitsubishi electric systems offer a better way with no new ductwork.... and lower energy bills. so everyone gets exactly what they want! mitsubishi electric cooling and heating. make comfort personal. changes to medicare plans could significantly impact your healthcare costs. are you getting all the benefits you're entitled to? call healthmarkets and we'll help you find the right medicare plan. hi, i'm doctor martin gizzi. it's a new medicare year. that means more changes ... and more confusion. my advice? don't go it alone. you can get smart, unbiased help finding the right coverage for you. call healthmarkets today. we search thousands of medicare plans from leading insurance companies. plans that may... cost less... cover more ... with more choices... like dental and vision care ...

and freedom to choose your own doctors, all at a price you can afford. we find the right plan for you. and we do it at no cost. if you miss the medicare deadline, you may have to wait a year before enrolling. please don't wait. call this number now and let healthmarkets find the right medicare plan for you. call now on location with the famous, big idaho potato truck. our truck? it's touring across america telling people about idaho potatoes. farmer: let's go boy. again this year the big idaho potato truck is traveling the country spreading the word about heart healthy idaho potatoes and making donations to local charities. excuse me miss, have you seen our truck? you just missed it. ahhh! aw man are you kiddin' me?

♪

♪ andrea: two days before hillary's big day before the benghazi select committee, democrats are pushing back and ramping up their attacks on the gop-led panel. the vice chair of the committee, elijiah cummings, accusing republicans of spending millions of taxpayer dollars to damage clinton's campaign for president x. the democrats, well, they don't stop there. just in time for her big week on benghazi, hillary's campaign releasing a video praising her leadership with plenty of testimonials from people like a former navy seal. world leaders, even madeleine albright makes a cameo, who was secretary of state under hillary's husband. and there's more. a superpac backing hillary spending some big money in airing anti-benghazi committee ads in four early nominating states. so what can we expect out of this hearing, judge? i want to go to you first. how closely will the fbi watching these hearings? i mean, can they use the testimony from the hearings in

their investigation if they're building a case? >> absolutely. that's why people take the fifth sometimes when they are asked questions. andrea: do you think she will? >> no, not a chance. her whole career would be done at that point. andrea: can you envision her in any situation saying because this is under investigation i don't want to comment at all? >> i don't think that would help her either. i think we're more likely to get it's been a while, to the best of my recollection, softening language. if it's anything she feels is dangerous territory, i would anticipate that kind of language. because, let's face be it, the rumors are the fbi is actually conducting an espionage investigation against her. that's serious. she faces potentially up to ten years in prison for that. if it's, if they find reason to believe that she conspired to conceal documents from a government computer in the erasing of the documents, that could be three years per document. that's a tremendous amount of risk. so whether it goes there or not,

i don't know, but it's not the kind of thing where a lot of people at home think, well, you know, the administration will put pressure on the fbi to dump the investigation. and, yes, that does happen at times but not directly to fbi. it gets put onto the doj, and the doj then kind of -- but that's not the kind of secret you can keep. agents are focused on their job -- kennedy: and they're proudly apolitical. and especially in this case. they don't want to be bullied by either side, whether it's the select committee or the vocal democrats who have declared this case shut, led by hillary clinton. it's not a very -- >> and obama. kennedy: it's a very antagonistic place to operate from, and, you know, she seemed apologetic at one point, then she's laughing at jake tapper. and you know the fbi is weighing all of that, and the benghazi testimony will go into that. andrea: gillian, i want to get you in here because she's running these ads saying this is all political and democrats are circling the wagons and throwing sand in the media's face.

but it was "the new york times" that broke the story about the server, and it wasn't until six months later that trey gowdy issued that subpoena, and then it's the fbi going after her. is this really political? gillian: you're all, kennedy, you're all right to point out that, you know, someone has to step in here and say the fbi is, they're homeland and intelligence professionals. they're not playing around here with politics. they could care less, to be honest about it. on the matter of pleading the fifth, remember that the campaign, hillary's campaign just a couple of months ago released a statement kind of condemning and expressing disappointment over remember the former i.t. staffer who pleaded the fifth? be. >> sure. she can't do that. gillian: she can't do that. that alone eliminates that possibility. you can't call somebody out for doing that and then do it yourself. >> exactly. and the whole claim that this is political, if it was george w. bush being interviewed or investigated by a congressional committee on the whole weapons of mass destruction thing and

some democrat made a comment about, oh, yeah, we've got 'em now, of course. if he's being investigated, the opposing party's going to be rubbing their hands about it. that doesn't mean there's not something there to investigate. harris: interesting. i want to yield all of my time back to you, gillian, with this question. you're the expert on the couch. you worked across two administrations, national security staff for the white house. so what about this stinks to high heaven to you? what would keep you up at night? gillian: here's the worst part, to me. i worked at the state department as an intern, 2004, 2005, okay? as an intern, i had a low-level security clearance. i, all my little intern colleagues, the directors, the researchers, the senior directors, the senior -- everybody at state department was briefed, was very clear on what the guidelines were about handling classified information. everybody was given, you know, professional state department e-mail accounts.

so what keeps me up at night is, one, the idea that it was somehow unclear what the guidelines were. the guidelines were very clear to everybody. number two, it was really a -- that was, here's then an opportunity for secretary clinton to step forward and take a leadership role and say, you know what? i'm going to work with the state department, the federal government to revise regulations to make sure everybody's onboard. i want to lead by example in the future. and that bugs me, that that hasn't happened. right? you can't expect the interns to follow the policy guidelines and not the secretary. the organization falls apart. harris: well, kind of connected to all of this because, i mean, she wants to be president, and as i understand it, the cyber problems at the state department were flourishing under her watch. new cybersecurity concerns today with this report. investigators reportedly looking into claims that a teenager hacked homeland security secretary jeh johnson's private e-mail account and the personal

e-mail account of cia director john brennan. this dude, who says he's under 20 years old, claims he posted documents online including a list of e-mail addresses from brennan's contact file. "the new york post" was first to report the story describing the hacker as a, quote, stoner high school student who claimed to be motivated by his opposition to u.s. foreign policy. the cia is not com to say it has referred the matter to the appropriate authorities, which i can only imagine how much fun that's going to to be for this young man if they can find him. >> most stoners i know are not motivated about anything. [laughter] kennedy: and aren't all hackers 20-year-old stoners? harris: how did we get to the place that we've had a secretary of state who says she couldn't figure out how the e-mail works, okay? we've had the biggest breach in u.s. government history through the equivalent of the hr department for the u.s. government. it included six million fingerprints, right? and we have this. how do we get to the point that

we're this weak? >> i think the government is behind the curve when it comes to technology. harris: no. [laughter] >> all right, so state the obvious. you know, i know they were doing it in some respects when it came to obamacare, but i think that the government really needs to pair with the leaders in this area like google as far as securing our networks. because this is one of the most serious threats we face right now. it's haha, it's a 19-year-old hacker. but the chinese government, the russians and the damage that can be done when this 19-year-old or 20-year-old hacker gets confidential information from a cia director and just puts it out there because he thinks it's the funniest thing in the world, now, it's a serious crime under the computer fraud and abuse act. it's a serious crime, but it needs to be treated as a serious crime, and we need to do more to prevent it. kennedy: can i just say this is what happens when government becomes too bureaucratic and bloated, communication becomes impossible. it's very difficult to change things. interagency communication is,

essentially, when it comes to technology and cybersecurity nonexistent. and, therefore, you know, you see these things happen when government just becomes too big and immobile. and, you know, to the hacker's credit, all he did was call verizon and say, hey, i work for verizon too, i need this guy's information, and the perp on the other end -- the person on the other wednesday said, here you go. it was a fairly unsophisticated breach. harris: he and a group did this. they posed, they tricked, and they got what they needed. so is there a political party out there, andrea, that maybe is in favor of smaller government? [laughter] and where are they? andrea: the republicans nowadays are acting so much like the democrats, i get confused so much. i feel like the 28-year-old stoner. speaking of the stoner, get that guy a dime bag, some rolling papers, and give him a job for the cia. how about they do that? they should hire him. they should bring him in and say, look, we could throw you in the slammer, and we should, because you broke the law,

however, here you go. start working on our behalf. start helping us with cybersecurity because the other story out today is that the hack that came by the russians was under hillary's watch. and this is why it's so important last week and president obama came out and he said, no, hillary's server wasn't hacked. i can guarantee that. harris: i don't think so. andrea: the fbi said, not so fast, mr. president. this is why he didn't seem credible. we're vulnerable from within and without, and that's why this server story is -- kennedy: and how paranoid is that kid today thinking that the secret service is on his trail? harris: felony sex assault charges dropped in l.a. against a man who is already being sued by three other women. did the fact that he's a saudi prince influence the prosecutor's decision? judge? we'll be right back. ♪ ♪ why do so many people choose aleve?

it's the brand more doctors recommend for minor arthritis pain. plus, just two aleve can last all day. you'd need 6 tylenol arthritis to do that. aleve. all day strong. ♪ ♪

kennedy: welcome back. los angeles prosecutors announcing they are not filing charges against a saudi prince. the case now in the hands of the city attorney's office which could still bring misdemeanor charges. he was arrested back in september at this mansion near beverly hills accused by a female worker of trying to force her to perform a sex act. after the arrest three more women came forward suing the prince in civil court accusing him of assault and battery, sexual discriminationing and retaliation and inflicting emotional stress. the prince's attorney is calling the lawsuit a shakedown. officials say the prince does not have diplomatic immunity. judge, of course, i'm going to go to you with this. so he is not charged with felony sexual assault, but they didn't just dismiss the proceedings altogether, they kind of kicked it back to the city attorney. what does that say to you? >> well, i mean, there's a civil action still. there's a civil action which is completely separate. the attorney for the girls who were claiming that they were

sexual assaulted brought a civil claim i think two days after the incident started. the fact that they decided not to prosecute the criminal case, to me, that soughts to me there were inconsistencies, the evidence was not there to support it. if you've got witnesses telling you different things happening, a prosecutor has to make a judgment call, do i believe them? are they trying to shake down the prince? it's not the kind of thing that i think would be the subject of a conspiracy to hide, you know, to not prosecute this guy because he's well connected. he doesn't have diplomatic immunity, they established that early on, so he could be prosecuted. and it's almost impossible to keep a secret like that secret. if somebody were to put pressure on them because you've got police officers who have taken statements of the witnesses, you have the prosecutors. if somebody comes from above and says we need this to go away, those people aren't going to remain quiet. they're going to go to the media. they're going to say these people were assaulted, raped, beaten, whatever happened, and we're getting pressure to kill this investigation.

so it suggesters -- kennedy: but are they killing the information or could misdemeanor charges still stick, and what would that mean for him? >> well, if there are dismearn charges that can stick -- and that's going to be up to the city attorney -- but if there are, it's a vastly different case than what it was made out to be. at the beginning there was allegations that one of the women who live inside the m -- in the compound was running to the wall covered in blood. obviously, there's something seriously wrong with the case if they're punting it down. i don't know what deportation laws would apply if you get convicted of a misdemeanor. i don't know that he would be subject to deportation, but certainly the punishment would be vastly different than the original allegations. now, the civil case is still pending, and that's going to to be very informative because the lawyers there are going to take depositions, and those are not necessarily confidential unless the judge seals it which in most states they won't. you get to find out what the

allegations are and a lot of details come out. the question is, is this something that's going to be settled to make it go away in order to avoid any publicity. kennedy: are there two criminal justice systems, especially in places like l.a.? harris: there's probably more than two. there's the kind for people with regular money and then there's the kind for saudi prince money. gillian, you've been all over the world, is there any sort of diplomatic thing that can happen here? because if money can make this go away, it sets up a dirty precedent. we know that's already been set. gillian: you know, i guess kind of the flipside is we're so careful to protect foreign dignitaries when they come here. you know, we don't -- we, meaning the federal government, the the executive branch, whoever -- you know, doesn't want foreign dignitaries of any stature, ambassadors, heads of state to kind of rub up against difficulty with law enforcement, with homeland security.

and so what happens is they tend to kind of pave the way for these things to get ironed out smoothly outside the public eye wherever possible, you know? the white house tries to facilitate that. here i don't know. you know, it depends. let's look at our relationship, the u.s./saudi relationship, where are we? things good? things shaky? kennedy: having lived in los angeles for 15 years, it seems like there is a completely different system for celebrities and really rich people. a principal refusing to release results of a middle school election because the winners weren't diverse enough. the message this is sending to kids about the democratic process and some parents' reaction. that is next. ♪ ♪ ced in a german dance group. i wore lederhosen. when i first got on ancestry i was really surprised that z

andrea: more "outnumbered" in just a moment, but first to jenna lee with what's coming up in the second hour of "happening now." jenna: rick santorum takes your questions, there's still time to get your questions in. in the meantime, we're awaiting a news conference from jim webb, he's expected to announce he's dropping out of the race for the democratic nomination. we're also awaiting news from joe biden, speculation rampant over his entry into the race. our very own ed henry is reporting he will get into the race, though there's no firm timeline.

and when and where dogs first became man's best friend. when did that happen? you'll want to hear this, it's coming up on "happening now." andrea: oh, so cute. thank, jenna. harris: well, there is controversy brewing around a student election at a san francisco middle school. the principal has refused to release the results for more than a week because the winners were not diverse enough. she was worried that students were being underrepresented. >> that is concerning to me, because as principal i want to make sure that voices are all heard from all backgrounds. we're not nullifying the election, we're not canceling the election, we're not saying it didn't count. harris: the principal is now under pressure to finally announce the winners this week. parents are outraged, say it's just not fair to mess with the democratic process with one mom whose son ran for student office saying he does not want to run again. >> if we can't teach them the right way or how it's supposed to work, then we really are letting our kids down. and my heart goes out to the kids, because they're confused

still about why -- what's the issue. harris: andrea? andrea: i agree with the parent. it sounds like her child worked very hard to win the election, and what does it say if they're going to justin scrap the elections and have a do-over? life isn't fair. i'm sure the other kids put effort into it. but i do see the principal's point. i do get it because if you have a white student body and the school is predominantly minority, as a principal you do want the kids to get along. you don't want there to be problems. you do want them to come together on certain issues, i just don't like the way the principal's going -- >> wait, wait, i totally disagree with that. harris: hold on a second, judge. there were no latino or black candidates chosen for the top four spots. go. >> they voted for them. you're basically saying to -- this is kind of like a microcosm of what's going on in the country. you're saying to the black student voters you can't elect anybody other than a black or hispanic voters, you can only elect a hispanic.

this school is 80% minority, 20% white. they decided in their votes to elect a student body government that was more white than minority. they have minority members, but the principal goes, no, no, that's not going to do. you're telling the black voters -- they're disenfranchised. kennedy: and you work with parents and student groups before these elections, get the kids engaged in the process before anyone decides to run and make sure you have the kind of passion necessary that people can make a p convincing argument when they stand up before their fellow students so they can get their votes. that's when you do it, you don't do it ipso facto because it sends the message that, a, this is the soviet group on, and, b, when your feelings are hurt, you'll be coddled in the real world, and that doesn't happen. >> the point is nobody's saying anybody mess with the the election. the students voted, and i don't think it's right for the principal to come in and go, oh, no, no, no, i know you elected more white people than hispanic or black people --

andrea: it's not. shouldn't she be concerned why there weren't more minorities on the board? and work with them after? harris: to both your points, everybody had a chance in the election process itself because they did it in home room. so that opened it up to every single student. now, that doesn't speak to the issue of how do you get people of color in the actual candidate process. what are your thoughts, gillian? gillian: i think this is not the way you go about getting the results you want, right? maybe the principal can do a better job next time of encouraging more of the minority students to run, maybe she can help them, maybe she can encourage them. you try and affect the process, not the outcome. that's like this reminds me of, you know, like in africa, this is the way african countries do elections, right? this is not the way to go. harris: we should -- [inaudible conversations] gillian: aye seen it, it's not good. so start earlier in the process, right? start, you know, help the kids

put up campaign, whatever they need to do and do it that way. harris: for those four students who worked so hard to get there no matter the color of their skin, hopefully they've got the support they need to lead now. well, it's a polarizing parenting debate, and now kids are weighing in on the participation trophy. yeah, that one that they give everybody. what they have to say about hard work, fairness and if it's okay to reward people for simply showing up. ♪ ♪

awe believe active management can protect capital long term. active management can tap global insights. active management can seek to outperform. that's the power of active management.

♪ ♪ you're simply the best, better than all the rest. kennedy: oh, forget being the best, everyone gets a trophy! we've hashed it out before, the old participation trophy. it has stirred so much controversy, and now it's not just some parents that like the idea, kids like it too. a majority of kids, 60% of them age 6-12, think anyone who plays should get an award, only about 40% of kids in that age group think only oners should get the -- winners should get the prize. harris: i can understand why kids say that, because they love to get stuff. halloween night they all want candy whether it's, you know, the good stuff or the not-so-good stuff. i get that. but for my kids, i just don't want them thinking they don't have to do anything special to be treated special. the bar is high. kennedy: yes. we don't want ordinary --

harris: i can love them, but the world -- andrea: adults like stuff too. [laughter] we like to win and get an award. i mean, gee, winning isn't everything. what do they say, it's not the only thing, it's everything? you do learn more from the losses. we were just talking to one of our bosses before the show, and her son lost his baseball game, and she said, you know what? i'm not disappointed. i was able to keach him about -- teach him about losing. that's what fran tarkenton told us when he was here. >> that's the system they know. every time you lose, it's okay, here's a trophy. we didn't grow up like that, and it really was fine. you didn't get a trophy, the coach would go, you know what? we'll get 'em next year. yeah, we will. it didn't make a difference. gillian: yeah, it's about the bounceback. this is an opportunity to do better next time, to teach kids how to get up -- you're going to lose a lot more. andrea: i'm giving trophies to everyone today, everyone did such a great job.

>> at least we partied. andrea: and guess what? you can find us on the web, foxnews.com/outnumbered. click that overtime tab. harris is logging on now. harris: i am. andrea: "happening now" starts now. announcement from jim webb in a few minutes. it may not be all over for the senator. we'll cover all of the news "happening now". >> the race for the white house. what four questions do you need answered in the next four years? rick sanatorium in the hot seat answering your questions. plus, terrifying moments as a young boy nearly drowns in a fast- moving river. the entire rescue caught on camera. and tracing