♪ jon: 100th anniversary of national parks. looking forward to your segment next hour. >> that is a treasure. jon: see you back here then. "outnumbered" starts right now. ♪ sandra: this is "outnumbered." i'm sandra smith. here today is harris faulkner, co-host of "after the bell" on fox business, melissa francis, jedediah bila is here today, and today's hash harks, we welcome back fox senior judicial analyst judge andrew napolitano. >> i wish i could fit all of you in my arms. harris: you can get in trouble for that comment. you might want to walk that back. i want recording of your voice to be my doorbell. they would be like wow, that sounds good.

>> stuart varney did that with the judge ace laugh. >> they turned that into an app. yes they did. distributed 2000 of them for free. they're now a collectors item. harris: i have to have it for my doorbell. sandra: honor to have you here today. let's get started with the news with stunning new details in the hillary clinton email scandal. comes courtesy of the first sworn testimony of a member of her inner circle, cheryl mills, who served with as clinton's chief of staff at the state department. in newly-released transcripts from a deposition conducted friday, mills repeatedly refusing to answer questions about role of computer specialist bryan pagliano in arranging clinton's private server. mills blaming the benghazi terrorist attack for why clinton failed to turn over her emails as she left office in 2013 as she was required to do so under the law. saying quote, we lost our first

ambassador in quite some time and we were stepping through sets of issues associated with that and she too had fallen ill and there had been a party where we were obviously navigating a whole set of issues in that space. mills deposition came in a need dom of information act lawsuit brought by "judicial watch." the conservative watchdog group's director of research and investigations had think to say about her testimony. >> they absconded with records. they knew when they left office they were taking federal government records with them. they hid them essentially for two years. i guess you're supposed to feel sympathetic or sorry for them but it just doesn't line up with the facts. it is gamesmanship. >> the seven hours of testimony, what did you make of it, judge? >> the legal bad news for mrs. clinton continues to cascade on her. she hasn't had a breath of fresh air or good news from the legal side since the secret server was discovered. we learned interesting things

yesterday. mrs. clinton in the four years she was secretary of state only used her blackberry. she did not use a laptop. she did not ice a desktop. didn't use a tablet. only used blackberry wherever it was? guess where blackberries are disabled by order of i.t. people on 7th floor of the state department. where was her office? on 7th floor of the state department. harris: doesn't make any sense. >> secretary of state of the united states in charge of diplomatic affairs around the globe, when she was to communicate directly with officers, leave her office, sure rounded by cordon of guards and aides and go down the corridor to respond to emails that absurd. harris: that is nonsensical. >> because she refused to use, they asked her several times a government issued blackberry. because she knew that would be subject to the freedom of information act. harris: judge maybe this was not commensurate but there was conversation early on with president obama and use of blackberry.

what is the deal inside of washington. >> i can tell you. blackberries are traditionally more secure. i.t. people think they're harder to break into. iphone easier for hackers to get inside, in government for years they have stuck to the blackberry. >> if she had used a government issued blackberry it would not be disabled on 7th floor. because she used her own blackberry tied into her server in chappaqua. sandra: what about, critics saying after reviewing seven hours of testimony, the first in this, denial, denial, denial. you look at excuse they're using. benghazi, judge. what do you make of that? >> well benghazi occurred 2 1/2 years after she began using the secret server. there is really no argument, no tenable argument to be made there. as i understood the argument in a light most favorable to cheryl mills that were so taken aback by the events of benghazi, this is december 2012.

she is out of office five months later they neglected to turn over all emails when they left office. quite frankly that is nonsense. the reason they didn't turn over all the emails because the emails weren't there. they were in the server in chappaqua. mrs. clinton again was terrified of people knowing as they have a legal right to do, what she was writing and whom she was writing while secretary of state. sandra: jedediah, want to get you in here. mills's lawyer, beth wilkinson was in her with there. repeatedly clashed saying the questions were beyond the scope of what the judge had allowed. i can't ask that. there was a lot of that going on. >> she doesn't, this is really difficult issue for her. she didn't want to answer these questions because either she's completely corrupt or she is completely inept. and even if benghazi happened at same time, even if the argument was, well there was this flood of benghazi you're telling me that the state department is ill-prepared then to both follow of law and to handle a tragedy that occurs where -- so what is

it? are you corrupt, are you hiding something? is there potential indictment that is going to happen here? or are you telling us you were just incapable of doing your job and you weren't familiar with the law? either way this doesn't look good for her. there is no escape route. >> i thought surprising thing that came out, they never considered the idea how they would comply with the freedom of information act. this came about because of watergate. you knew that you had to have transparency. >> right. >> for government workers to show what they were doing. they didn't even consider how they would comply with this law at all. that's a really important difference. >> very interesting question that was put to her was, was mrs. clinton, were police clinton's searchable for freedom of information act purposes because police clinton told the several press conference the answer to that was yes. mrs. mills's answer was no. it was impossible to use search emails for the freedom of information act by the state

department. harris: are you surprised there is inconsistency on important points between hillary clinton and people who worked for her? we don't know exactly what huma abedin has said but this is critical point where the women don't come together on facts? >> this is great question. this is very unusual what they have done. they have the same lawyer. beth wilkinson represents all the aides. sometimes the justice department will not let you do that. harris: why did they let that? >> i guess they didn't clarify things ahead of time. harris: i want to ask you about negligence because i've seen it hashtagged, negligence and intent. >> okay. harris: where this comes into play? >> wealth most serious potential charge against mrs. clinton is espionage which is the failure to keep safe state secrets that have been entrusted to you for safekeeping. and federal crimes, the government has to show intent, that you intended to expose them. harris: whether they're marked or not is how i read it. >> except for espionage is not

intent crime. the government can prove a jury that espionage was committed by showing gross negligence. gross negligence is the failure to take care of something with the really strong belief that a bad thing will happen if you don't take care of it. so simple negligence is driving along the street behind me, behind us at 30 miles an hour. and hoping you don't hit anybody. gross negligence is driving along the street at 90 miles an hour and hoping you don't hit anybody. sandra: let me give you what cheryl mills went on record of intent. use of hillary clinton email server was absolutely not an attempt to evade the freedom of information act. that is under oath, first time we're hearing sworn testimony. >> that is defied by email from huma abedin which mrs. clinton was offer ad blackberry when the server went down. not only do we have the 7th floor stuff where the blackberry doesn't work, but sometimes the server in chappaqua went down so

the blackberry didn't work anywhere. the i.t. people, that would be bryan pagliano, madam secretary said, here is one they will work. harris: this is a lot of devices. huma sends an email to pagliano and other i.t. people saying we can't have that because, whatever she says on that would be subject to the freedom of information act. harris: interesting. the other thing is too with pagliano, with all these different devices, now we know how they were able to trace emails between her and bryan pagliano because they weren't on her server because they got sent to him. >> there were funny things that happened. she sent email to very close friend. computer went down of the close friend responded. the email came back to the responder. so the close friend called the state department's main switchboard saying would you please use this email for mrs. clinton. harris: can't make it up. sandra: things are changing fast. we're on it. you've been on this story with us from the beginning, judge. >> it is a lot of reading.

[laughter] sandra: hillary clinton and donald trump face off in the general election, it is shaping up to be extremely close race, just points apart. new polling shows a definite gender split how voters are leaning. battles of the sexes we could see in the fall. plus this man could be the third party candidate we've been hearing about this week. a closer look at david french. what he would bring to the table and will he be able to shake up this race? right after the show, catch more from the couch as always you can find overtime on foxnews.com. you can also find us live on facebook. judge andrew napolitano will be joining us for first time today. go to facebook.com/outnumbered facebook.com/outnumberedfnc. join us for free legal advice after the show. >> free legal advice. you don't let anything keep you sidelined.

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♪ harris: it could be a squeaker, if the numbers hold! brand new polling shows if hillary clinton and donald trump face off in november, voters have clinton just four points ahead, leading trump 45-41. support for the candidates is split among men and women. this is interesting. men go republican, chooses trump 51-35%. it slips among women.

it is tighter, women choose clinton 54-30%. actually no, just a. trump leading independents slightly. 41% choose him over hillary clinton. as we come back out with you, judge, i'm curious first of all to know is it still too far out to look at any of this, do you start to look at trends? >> professionals would tell you they are too far out. they are looking at numbers in battleground states which we don't have yet or with us today. the national numbers are interesting. they show the extraordinary development of trump's popularity in the past six months. i don't think anybody could have predicted this six months ago but the most important numbers that the pros are looking at are trump versus clinton in the battleground states. trump says he will change the battleground states. put new york, new jersey, and california into play. so what is a battleground state is the next question. harris: that is tricky though, jedediah, because hillary clinton is going up against

bernie sanders and her own party in california. i realize it is intra-party and does matter. if she doesn't do great, but only squeaks that out, does that put the state in general election potential. >> potentially. people are starting to listen to the candidates as more general election candidates than primary candidates. what is interesting if you look at polling, more than numbers, look at issues, look at who people trust based on issues, for example in this poll, if you break it down, people say trump would be better creating jobs. trump would be better handling isis. i think that is isis. those are key issues, national security and economy. so that is how i tend to look at it but numbers will shift. i think women, when you look at gender, stuff like that it is way too early. remember these two will wind up debating each other. they will be front and center on issues where people see contrast without distraction of bernie sanders and 550 other

republicans running at one point. harris: so when you, it was 16, not 550. i'm pretty sure. >> don't like my math? harris: felt like 550. the gap between how many men would go for trump and how many women would go for hillary clinton? >> it is interesting. because we tend to look at these things in broad spectrum, who will get the most votes across the board and really about getting your base out and getting your people fired up in raw numbers. look at gender gap, hillary clinton has to get more women out there to vote and more women fired up. i asked a marketing expert, great guy, bruce turkel, she could appeal to women better appealing as grandmother and mother. >> she tried that. >> she tried that. harris: wasn't that her -- >> problem is issues you're talking about, national security and also the economy and the economy she said i will put my man in charge, bill clinton. >> that's a mistake. and.

>> and on national security all she can point to is libya. >> that was disaster. harris: this policy speech we're expecting to come up how she will answer donald trump back. remember that was first time we had seen him teleprompter-aided speech. your thoughts? >> i i want to quote the directr of "quinnepiac poll" talking about tight race he is forecasting based on polling results, he said this will not only be a divide between democrats and republicans in the fall, young and old, white, black, hispanic voters and husband and wives. i thought there was such a great point. >> aye yi yi. sandra: get down to household level, judge. anecdotally, you're out there talking to friends and family members there is division within households who people are going to support. he makes a point, this question could be who we dislike the least. you hear that conversation. >> you hear that a lot, whether it is moral or not, a lot of people will vote theory i dislike that person more. harris: all right. the rumble is growing louder

from republicans who say they want a third party candidate. we told you yesterday "the weekly standard"'s bill kristol had somebody in mind. fox news is confirming the man he wants to launch an independent bid against donald trump and hillary clinton is a man named david french. iraq war veteran, staff writer for "national review" and constitutional lawyer. former republican presidential nominee mitt romney tweeted about it. i know david french to be honorable, intelligent and patriotic person. i look forward to following what he has to say. not everybody is on board with the idea. here is syndicated columnist charles krauthamer. >> it's a mistake for conservatives to run another candidate with explicit intent essentially of blocking trump from winning. either he is going to win -- set nominee of the gop, chosen by the people. he is either going to win or not. if he doesn't win, he should not be able to claim he was stabbed in the back. harris: you know it is interesting, more people may be familiar with his wife than him. >> who is his wife?

harris: mrs. french, nancy french written books with sarah palin and with others. >> i didn't make the connection. harris: that is his wife. she is best-selling writer. so that is interesting. jedediah, in the green room your response was? >> who is he? i never heard of him. you could put any one of us up there i think they would have more name recognition. i think it is insanity at this point to pull someone who has no name recognition at this stage, basically saying let's ignore the will of the people, let's ignore will of people who supported donald trump. this is who they're sporting. you don't like him, you don't have to vote for him. you can do write in, rand paul, libertarian, do whatever you want but to have this campaign essentially to take this guy down sounds desperate and it sounds crazy. harris: the question would be whom does it hurt the most? when you look at third party candidate added to mix, turns out to be clinton and trump,

clinton gets 40% of the vote, trump 38. this is abouteven. this isn't just david french, any third party candidate according to the -- "quinnepiac poll." >> this could backfire for trump. conservatives out there and rallying against him it gives him talking point. harris: real quickly, judge, then i will come back. >> guaranteed loss. you can't get on in texas because they missed their deadline. now they're missing other deadlines. all he's doing is i guess trying to get publicity for his failing magazine i imagine. harris: he is talking about bill kristol. that interview was before the name had been released. >> trump is correct about texas which of course is the third largest state in terms of the number of electoral votes. it is already too late. what does that mean? the date has passed by which an independent candidate has to submit petitions and register in order to get on the ballot. mike bloomberg, who has limitless fund, spent a fortune

to survey all 50 states and he concluded it would be fruitless if he did it. where are the guys getting money, why they are doing it, what they hope to accomplish, what end result they think they can bring about is mystery to my. we know some of these folks. harris: david french on twitter 12 hours ago, his account, anyway, i'm incredibly humbled by and greatful for many expressions of support. thank you. so he is excited. sandra: that wasn't coming from donald trump. [laughter] >> the understatement of the day. sandra: just heard him say that but also remember yesterday how many times he called him the "l" word. you said that ended by midnight last night. harris: he wasn't calling him the loser anymore. yeah. sandra: the legality of this, judge, you're saying there are major obstacles. they can't get past the texas situation? >> number of signatures needed on petitions and human beings required to generate those signatures is nearly impossible in the remaining 47 states. three of the states, i forget

what other two are, donald trump is correct about texas, it is already too late. harris: so important for the electoral count that you have already shared with us. >> correct. harris: jedediah's point what this does over all with the voters is huge because they don't feel like they're heard. getting ugly in the race for the white house as we've been talking about. hillary clinton stepping up her assault on donald trump using several difficult lines of attack. will her strategy work or backfire? new details revealed in the lawsuit against donald trump's university, trump university, which is accused preying on vulnerable customers. what trump says and how it could impact his race for the white house. stay with us. ♪ with the right steps,

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attack on lunch yesterday, to hit his record on veterans issues and undermine his news conference about the money he raised for vets. clinton's campaign hosting a national press call, releases statements, unleashing surrogates in key battleground states and clinton herself even called in to a few news shows. after blasting trump she asked why she hasn't been willing to face the press herself? >> it has been pointed out to me it has been something like five or six months should you held an actually press conference. is that something you will remedy soon? >> oh, i'm sure we will. you know, look, i was shocked myself that i had done nearly 300 interviews and they're not even sure they captured all the ones that i've done, but i believe that we do, and we should answer questions. of course i'm going to in many, many different kinds of settings

>> ha, ha, i'm sure we will. i bet. trump quickly picking up line of attack, tweeting, i'm getting great credit for my press conference today. "crooked hillary" should be admonished not having a press conference in 179 days. we are the media. we had to check that math. in fact he was right. as of today, 180 days, december 4th of 2015 is the last time she had a press conference. i loved her caleing into the shows and laughing, judge. the judge, last time she had the press conference talked about wiping server clean with a cloth. you mean with a cloth? [laughter]. harris: you guys have the same laugh now. >> i'm working on it. i don't know, it is fun. >> ed said did you wipe the server clean? you mean like with tissue? she hired bryan pagliano to wipe the server clean. fbi extracted what they thought he wiped. as she mocks fbi in the interview and they take it all down and they will question her.

>> she is not facing press but hiding behind the phone and calling into the shows. i don't know. harris: not putting us behind velvet ropes anymore. i don't know that they were velvet. that might be my own desire but reporters were behind lines, remember that? >> one of the reasons she probably won't do a general press conference is for fear she might say something that would incriminate her in the two criminal investigations the fbi is conducting. she has a choice between following advice of her lawyers, don't say anything, and follow the advice of john podesta and political people. get it out there. >> she engaged in 300 interviews. hasn't she faced questions already? that is what she will tell us though? >> she will say that bret baier questioned her aggressively. that is only time she has been challenged in the 300 interviews. i can't claim to have seen all of them but never exposed herself to open-ended questions with follow up from the general press that follows. harris: i do remember when she

was keeping reporters at bay and we went, you know, the first 100 days, i remember we marked that as journalists. sandra: there was a clock in the corner. harris: you and i were going to put on inline skates and skate after her. she rolled out the campaign a second time. there has been some sort of, you know, fun taunting i guess you could say but in all of that when she literally penned reporters in behind the ropes she took a lot of criticism. >> she lives in hermetically sealed bubble when she goes out to make sure no one gets to her. does the general public notice difference because we're following closely between when she sits down one-on-one interview and like trump, just cold takes questions from the audience which a lot of more dangerous but i don't know if the general public takes note and realizes danger. >> the general public notices what she notices she is terrible at it. i have to give her credit for self-awareness.

she doesn't talk to the media but she will not sit down with judge nap because she isn't stupid. >> heavens to betsy, no. >> she will not do that. >> i would offer myself for that. >> same way she won't do debate on fox news of the she doesn't want to subject herself to that, because she is smart enough to know she has nothing to gain. she is not good at this, not her husband. he is embroiled in scandal and get out there he is likeable still. she has problem with likability, trust, transparency, honest think and these interviews she has done are not helping numbers. doing harder interviews with harder questions certainly will not help. harris: if you can't shake bernie sanders on your way to california you probably don't want to sit down with judge nap. >> he is likeable. i met bernie. he is a fine man. >> new details in lawsuit that could affect donald trump's campaign. playbook for trump university unsealed yesterday when testimony by former managers of

the for-profit school was also revealed. those former trump employees describing aggressive sales tactics they say they were told to use, such as, urging financially-strapped customers to find the money. choosing words of flattery most persuasive, and picking specific music for the gatherings. but trump's lawyers say the complaint come from a small number of students and that the vast majority were satisfied with their experience. a statement from the trump organization says, quote, the courts order unsealing documents ha no bearing on the merits of trump university's case. much of the unsealed evidence including declarations and surveys from former trump university students demonstrates high level of satisfaction from students and that trump university taught valuable room estate information. judge, i have got to come to you what do you think of this from legal perspective? will this impact him? you're talking about aggressive sales tactics. in some circles they refer to that as good marketing. what is the line here for that? >> i do not know the merits of

the case against him. i know that there is a group of his former students, if they were students, who paid a lot of money and felt they didn't get their money's worth and they have sued. if you add up all their demands comes up to 40 million bucks, a lot of money for anybody. i know some of them are suing him personally, that he is not protected by corporate shield. i assume trump university was a corporation. but what we just saw, what you just summarized, asked people to go out and find the money, talked to them using flattery words, play the right music in the background, what the heck is wrong with that? i can't see that as violating any standard of salesmanship. this isn't princeton university where you are trying to get in there or harvard. it's a school that has to sell itself and show what it has available and that's the job of these salespeople who as far as i can see used techniques that were quite mainstream. >> i mean when the public hears this story, i'm wondering do they see this as non-story?

when i read some of this, i worked in marketing before, a lot of it just read like sales tactics that weren't necessarily corrupt or anything. it was just aggressive sales tactics is not a crime? >> goes to the story of him as aggressive business person who wanted to sort of profit at all costs which is kind of what business is all about, i think people do hear that but like any line of attack, especially when it comes from the clintons opens upcoming back on them. for example, a lot of good work done by "new york times" and charles ortel pulled out recently, we saw bill clinton got $16 million from laureate university, another for-profit university which makes trump university like a bodega on the corner. they're guilty of the same thing sandra: judge, what specifically about his attack on this judge? what do you make of that portion of it? i think he could gain sympathy in all this. the attacks and charges that this university was teaching students to bet against the u.s. housing market, well that is kind of what you do when you're

learning about real estate, how to buy cheaper and sell higher. >> i think he was upset that the records were unsealed. he views this as essentially a private dispute in which the public has no interest. the other side is, you're running for president of the united states. you owned or operated this thing, ran on your name, people have a right to know what you did or see what you did. the well-respected judge a hater, i don't know. i don't know enough about the case to justify or criticize donald trump's use of that phrase. a phrase rarely directed, a phrase rarely directed at trial judge, particularly ones that will rule on your case! >> harris, is this easy story for hillary to grab to say trump victimizes little person, is that an opportunity for her? harris: depend on which part of the story she grabs for. if you go based on what you learned from unsealed documents and business practices what is

she going to call him, greedy? i don't know the man who ran "the apprentice" for several years as number one television show will be hurt by the word greedy. i don't know that hurts him. if she goes after whole idea of trustworthiness in all of this and ethics she may be able to land some blows but i tell you what some trump supporters told me since the documents were unsealed and that is they're glad this has come out because gets him to answer to it very early on. donald trump said he could have settled it but he chose not to because he wanted to fight. we don't know the merits of the case but we don't know what he thinks he can fight and win. >> right. harris: i doubt he would get in a battle, although i think he likes to fight but i think he does it because he thinks he can win it. he has to be careful, if he comes out on this and punches too hard, the big i told you so would hurt her. >> i like a glass house if you

don't have a hammer. >> exactly. the justice department is fighting back after a federal judge ordered its attorneys to undergo mandatory ethics training for allegedly misleading the court over president obama's immigration actions. we'll get the judge's take on that. after the show, head to foxnews.com/outnumbered. harris: o-t, baby. >> go to facebook.com/outnumberedfnc. extra questions after the show. the free legal advice. you can't beat that.

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♪ sandra: new developments in a story we told you about on "outnumbered." justice department is fighting a order from a federal judge that its lawyers undergo mandatory ethics training. you remember the order came a few weeks ago after the judge accused doj attorneys of misleading the courts over president obama's immigration

executive actions but now the department wants the order put on hold saying in new filings it is excessive and would cost millions of dollars to implement. judge, at the break i can give this story to you in 45 seconds. >> i happen to agree with the justice department. four lawyers lied to a federal judge four times. it was a very significant lie. has anybody applied under the president's program yet? no, no, no, no. guess how many am applied? 100,000 already applied. it is material and substantial lie. in return for those lies the judge ordered all 10,000 lawyers in the justice department to undergo ethics training. so that is really too broad a sweep. if it were my courtroom, i would have said you folks lied to me, you're off the case, out of the courtroom and i will send what i know about you to people that prosecute lawyers for lying. harris: could the judge come back and say i will issue new

order and more streamlined and want specific people who lied and who were part of the lie with regard to immigration and the president's use of executive order i want those people to get training? >> if he doesn't do that i think appeals court will order him. one of the arguments justice department makes it will cost $10 million to conduct ethics classes and lost time lawyers are not prosecuting cases. harris: i think that is viable argument? >> yes i do. sandra: talking about money with money on the couch today. >> i don't think it is effective punishment on right people. isn't what we're after, we want to change behavior? i think money is one of the best ways to change peep's behavior. if the lawyers were fined, brought up, reprimanded pay for what they did, because what they did was incredibly serious like you said. >> yes. >> i don't know sending people to ethics class, everyone has that kind of an impact. >> the whole legal system is based on trust. lawyers make statements to you. you're the judge. you couldn't possibly know the

facts as well as lawyers do. you believe them. when they lie, when they conspire to lie, when you accept the lie, the other side suffers because of the lie there has to be consequences. sandra: jedediah, going back the filing suggested $7.8 million would be price tag here, to melissa's point what would it even do? >> that's true. this ruling reminds me after bad teacher where two kids cheat on class, the whole class has to pay and whole class has to write on blackboard. i don't understand why you don't just target ruling at people who did something wrong. >> they must think this is systemic and this is going on and lesson is not being taught. that you can't lie to a judge. sandra: fair point. >> to remedy that, very severe punishments on people who did it, another lawyer, another student you would say look at that, wow, i do not want to be in that. >> exactly. harris: judge there must be some evidence there is a simmic problem? >> there is it hasn't been made

public yet and if there is it will be used in the appeal, lawyers for 2states suing the federal government -- 20 six states suing federal government will have to present it in court. sandra: or they're covering their backs because why didn't you do something about this before. >> you're not person who did not cause the lie, you're lied to, you're obliged and required to reveal it to the court. sandra: thank you, judge. the encounter that sparked international outrage. a young boy gets into a gorilla exhibit at a zoo and it leads to the killing of the gorilla. police are looking into the incident and who they are investigating and whether it can bring closure to this controversy. [shouting] them... are you completely prepared for retirement? okay, mostly prepared?

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♪ "dinner!" "may i be excused?" get the new xfinity tv app and for the first time ever stream live tv, watch on demand, and download your dvr shows anywhere. sandra: more "outnumbered" in just a moment. first let's get to jon scott with what is coming up in the second hour of happing now. hey, jon. >> hey, sandra. we're hearing what is build as bernie sanders california. he is spending a ton of time and resources what some are calling a last stand in that state. hillary clinton also set to hold an event in newark, new jersey next hour. she then heads to california where she is spending more time

and resources than her campaign had hoped. they did get a boost with new polling from stand ford. we will have details on that. president obama meantime said to be eager to jump into the race for the white house. he is heading to elkhart, indiana this afternoon for a speech on economy and we are getting word he may play a larger role in the election by mid-june. all ahead on "happening now." sandra: thank you, jon. harris: after sparking widespread outrage the incident involving a little boy and cincinnati zoo is under police investigation. the endangered gorilla was killed after dragging a a boy through the water. the boy climbed a three foot railing, walked through the bushes and plunged into the water. they will investigate the zoo for any violation of animal welfare act. the parent are look the ad now. the police are looking into the

incident to see if there was any wrongdoing. the latest that we know that this little boy is doing well. his parents issued a statement on behalf of the family to say he is still doing well. >> the police are required to conduct an investigation. did the parents look the other way and expect the gorilla as attraction and three-foot hyphens to serve as babysitter and protectter for the boy? the feds are looking at whether the law was broken when the animal was killed because the animal is protected species under federal law. animal rights people will use this as one step towards their argument that certain animals are entitled to certain protections under the law that human beings have. harris: oh, interesting. >> that is probably what is going to come next. harris: that is a complicated matter. you know, jedediah, you've been around a lot of children because you worked in academia with young children and witnesses said there were two moms together and kind of corralling their kids, this little one was

one of them, from their perspective the little boy was nagging mom, i want to see, he said monkeys. it is a gorilla. but i mean, in all of this, to look at the parents is kind of a nuance now. >> i think you kind of have to, i've been on class trips with kids, middle schoolers, 7th and 8th graders, they wander. you have to have ice in front of your head. any parent knows it is difficult to watch your kids, you have to pay attention and listen to them. i had kids say the strangest things to me on the trip. i want to climb the building. if i turn my head they will attempt to become spider-man to climb the building. i don't know if there was negligence. you have to look at the zoo, and look at parents, i think it would be irresponsible not to look at every aspect. sandra: so much judgment being passed when we know so little an people looking at back ground of these parents, judge, which isn't really fair to look at one incident. the mother said she believes

that her eyes were off of her son for about a minute. in order to be charged with child endangerment, doesn't there have to be proof that the parents were looking away for much longer period of time? >> there has to be proof of a very high degree of negligence, of almost gross negligence, of forgetfulness or heedlessness or carelessness that your child was couple feet away from gorilla. if i may, life is sometimes filled with very difficult choice, life of a human being and life of an animal, to me, an animal lover, my gina is part of my life, mying dog. to me, you need to save life of a human being. >> i love how we can't have accidents anymore. we have to analyze a thing to figure out how to stop it from happening again. sometimes terrible things happen. sometimes there is no way to prevent it from happening again, same circumstances won't present themselves again. it is horrible to watch the video and you feel so helpless,

when, gorilla looking at child and drags him through the water, i screamed first time i saw think, so did everybody else on video. >> i have children that size. yes, they can get away from you. yes you try to watch them all the time. i feel like we have fences everywhere in this country and protecting our from salt and sugar and everything out there. sometimes things just happen. >> after all the emotion you feel grateful the boy walked away with a mere scratch to the head. harris: doing well. the three-foot hyphens line, the three-foot high wall is part of focus of this investigation and you know, my little one was three to four, i have tall kids, i'm tall, my husband's tall, three feet would not be much of of a barrier. things just happen. if somebody wants to do something, hard to circumvent it. >> that's true. if you ever go to amusement park where children's eyes are drawn

everywhere, they see exciting things, they want to touch everything, want to be part of everything, i think those types of places have the responsibility to look and make sure even if a mom turns away for a second, there is not opportunity for that child to get into trouble. harris: to go over the fence. >> draw attention to it. harris: they're looking at all of it. we'll report the news as it happens on this story. more "outnumbered" after this. ♪ i'm terrible at golf. he is. but i'd like to keep being terrible at golf for as long as i can. new patented ensure enlive has hmb plus 20 grams of protein to help rebuild muscle. for the strength and energy to do what you love. new ensure enlive. always be you.

[ park rides, music and crooooh!unds ] [ brakes screech ] when your pain reliever stops working, your whole day stops. excuse me, try this. but just one aleve can last 12 hours. tylenol and advil can quit after 6. [ cheering ] so live your whole day, not part... with 12 hour aleve. sandra: thank you to judge andrew napolitano for joining us today. good to have you sir.

always good to have you. >> always a pleasure. sandra: can you laugh us out? [laughter] sandra: on that note. "outnumbered overtime" on the web. find us on facebook.com/outnumberedfnc. fun continues there. we're back on tv noon eastern. "happening now" starts right now. was detecting belonging to the black box ofe aerate 04. this is putting the investigators closer >> texas under water now. and european cities deal with flooding on a massive scale. and plus, an up close look of an out of control apartment fire. ba