jon: have a great thursday. jenna: "america live" starts right now. megyn: fox news alert, the white house taking a grilling today by the washington press corps as the fallout continues over remarks by vice president joe biden that some are characterizing now as racially insensitive. welcome to "america live," everyone, i'm megyn kelly. vice president biden on tuesday suggesting that republicans want to put people back in chains, those accusations made more controversial because he made them in front of an audience made up largely of african-americans. here are those remarks. >> romney wants to let -- he said in the first 100 days he's going to let the big banks once again write their own rules. unchain wall street. >> boo!

>> they're going to put y'all back in chains. [laughter] megyn: here's what white house press secretary jay carney had to say when asked about those comments just a short time ago. >> regret the choice of words? because some took it as a reference to slavery, and he had a -- >> nobody took it, nobody took it as a reference to anything except be, except for those who are trying to make something out of nothing here and distract anticipation from the policy debates. i mean, this is -- you know that's not what this is about. you know he was talking, if you look at what he said, about wall street reform, about, you know, the desire of some to put banks and wall street back in charge of your financial transactions in life. that's not what this president believes is the right policy. so we can, you know, we understand that there's going to be efforts to distract attention from the policy debates because the other side is losing these policy debates.

megyn: while mr. carney is dismissing the controversy as making something out of nothing, former virginia governor douglas wilder, a democrat, and the first african-american elected as governor, disagrees, blasting the vice president and calling these remarks unnecessary saying, quote: the president does not need this right now. our chief white house correspondent ed henry is live at the white house now with more. he is just out of that briefing. ed? >> reporter: well, megyn, the the news is that jay carney just told me that the president will not be dumping vice president biden because of these comments or any other gaffes we've seen from the vice president in recent days. some pressure on the white house about these comments as you laid it out, especially those comments from doug wilder, the first african-american governor in the united states since reconstruction from a battleground state of virginia, by the way, which is where these comments were made to, as you say, a partially african-american audience. the bottom line is that because of these comments, senator john mccain and others from the republican side have suggested that maybe vice president biden should be taken off the ticket,

replaced by secretary of state hillary clinton or someone else. i asked jay carney directly whether or not the president is going to be sticking with the vice president. here's what he had to say. >> since the president was given the vote of confidence, and you've defended the vice president repeatedly, let's just settle it once and for all, is it the ticket, obama/biden? >> yes. and that was settled a long time ago, and while i appreciate -- i have a long relationship with senator john mccain, but one place i would not go for advice on vice presidential running mates is to senator mccain. >> reporter: so a little shot from jay carney at senator john mccain for picking sarah palin back in 2008, but the bottom line is he is saying that come right after labor day there in charlotte at the democratic national convention, it will be president obama with vice president biden. and as you heard, jay carney also repeatedly said this is a distraction from the other side because he believes that the white house, the obama campaign are winning at least the policy

debate right now on issues like medicare and what not. and he repeatedly said the president wants this to be a serious campaign on the issues. jay carney got another question why then the president made a joke about mitt romney's dog being on top of the car if he wants a serious debate? megyn: what was the answer to that? >> reporter: what jay said is the joke was made as part of a speech about wind energy tax credits, and mitt romney suggesting that these are not important, even though they mean a lot of jobs in iowa and other states. nonetheless, the fact that you've had a joke like that, you've had the cancer ad that's gotten a lot of attention by this outside democratic group, not by the obama campaign, has raised questions, obviously, about whether or not you've got the president saying he wants a serious debate. and he is, i've been out on the road with him talking about these serious issues, but some of his advisers on the outside hitting with some of these other ads and what not that are not exactly serious policy debates,

if you will. megyn: uh-huh. ed henry, thank you so much. vice president biden also taking a hit from paul ryan. congressman ryan opening rally in ohio today with a joke about a gaffe that vice president biden made earlier this week when he didn't remember what state he was in. >> it is great to be here in north canton -- or as joe biden might say, it's great to be here in nevada! [cheers and applause] megyn: that was a reference to the vice president's appearance in virginia on tuesday when he told the crowd that the obama team could win north carolina! [laughter] at least they're neighbors. both swing states. we also have some new polls from those all-important battleground states today with the numbers getting interesting. we've been talking on this show for some time about how you look at the swing states, you know, 12 or so swing states, and president obama's been ahead in basically every single one. not basically, he's been ahead in every single one when you look at the

realclearpolitics.com average of all polls. we've looked at it time and time again. today? not so much. we're going to take a look at why mitt romney is ticking up in some key battleground states and whether that is sustainable for him. chris stirewalt will walk us through all of that coming up. well, there are new questions today about our economy after the labor department reported a jump this week in applications for unemployment. the number of americans applying for first-time unemployment benefits rising slightly from last week, although the four-week average -- which is considered more reliable -- is now below 364,000, and that's the lowest level it's been since late march. we also learned that housing construction slowed down after reaching its fastest pace since october of 2008. june was a great month for the industry, but the commerce department -- for what industry, housing? really? okay. in any event, construction dropped 1.1% in july. still, it's not all doom and gloom. applications for building permits are on the rise hitting

their highest levels since ought of '08. fox news alert now on some new reporting from israel over its increasingly tense showdown with iran. it now appears that some israeli government officials have already mapped out their plans for a possible armed conflict. with iran. israel's civil defense minister saying in an interview that he sees a monthlong conflict on several fronts with several enemies including not just iran, but hezbollah in lebanon and palestinian militants in gaza. he also warns hundreds of missiles could hit israeli cities daily in the event of israel choosing to attack iran's nuclear facilities. potentially killing, they estimate, about 500 israelis. so what do the israeli citizens think of this? my next guest is israel's parliamentary candidate who's founder of of the land of

israel.com, an english-speaking broadcast from israel. welcome back to the program. >> hello, megyn. megyn: yesterday we talked about gas masks, now we get actual estimates that they say some 500 israelis are likely to die. the experts we've spoken to on the u.s. side believe that's a low number. how are the israeli citizens reacting to all of this? >> megyn, listen, we're the most peace-loving people on the planet. we love peace. we don't want a war, but what's the alternative? the alternative is waiting for iran to get a nuclear weapon and how many millions of jews in israel or anyone around the world, how many millions will die? we have to step up to the plate and do what we need to do. you know, we have a historical perspective here in israel as jews. 2400 years ago we faced a nearly identical situation where there was a persian leader, which is modern-day iran, who sought to wipe us out. and just like all the enemies throughout history, he is gone. we're still here stronger than

ever. we know that god is protecting us, and it's that confidence that gives us the ability to act with such a high level of moral clarity even in such adverse circumstances. megyn: when you look at the polling being done inside of israel on how the folks there feel about whether israel should bomb iran's nuclear facilities, the folks seem opposed to it, the majority of us israelis pold said they do not want to see israel preemptively bomb iran's nuclear facilities. how do you explain that? >> well, listen, we're afraid like any other nation, we don't want to go to war, we don't want to battle. however, the government is saying more and more that if we need to, then we need to strike iran, and that's a real possibility. even if it just delays things for a few years. that few years in the current landscape of the middle east with the arab spring can change the entire game. many israelis are getting the feeling that the u.s. administration is trying to dissuade us from attacking iran not because they think sanctions

may work, but because they think our attack would jeopardize the campaign of the administration in this upcoming election. and, clearly, we're facing issues of our own survival. it's our survival we're talking about. we're not going to take u.s. elections or oil prices into account. as a matter of fact, america should not be dissuading us to attack iran. they should be saying, israel, listen, you have the best intelligence. do what you have to do, and we have your back 100%. it's that america that i know, the america with courage and moral clarity that made, the utah, the country that it is today. megyn: interestingly, those same polls out of israel show israelis do believe if it were a joint effort between the united states and israel, then israel would be likely to prevail in any sort of armed conflict against iran. they are less confident if israelis have to go it alone. our president has said he believes no president has had israel's back more than he has. you don't perceive it that way?

>> i personally don't perceive it that way. i think the majority of the country does not perceive it that way, and his actions throughout his term, i think, testify to that. listen, nothing short of an all-out international embargo will stop iran from acquiring nuclear weapons, and it just doesn't look like that's in the cards. so if that does not happen, for israel to be able to strike iran with america's support -- full, unwavering support -- i think would be enough to topple the regime, and we could have peace in the middle east. but, listen, america has to come with a lot stronger stance that they're supporting us than is coming out of the u.s. right now. megyn: ari, thank you so much for your insights. all the best to you, sir. >> thank you, shalom. megyn: new conflict on the campaign trail now as some former special ops soldiers take issue with president obama taking credit for the raid that killed usama bin laden and also objecting to the intelligence leaks we've seen as of late.

we will speak with the group behind this message. also, a court ruling yesterday that one state's controversial voter id law is okay. and that ruling is already rippling from coast to coast. up next, one of the men behind the push for that state's law tells us why this is so important. and by the way, the ruling came out of a critical state when you look at the electoral college and the presidential race. plus, there's a growing debate following the shooting at the family research council which advocates for conservative principles. did this happen because of an allegation by some left-leaning groups that the family research council is, quote, a hate group? >> we had a person who entered the family research center on the corner of 8th and g street northwest. once he entered, he was confronted by a security guard. he opened fire on the security guards. are you receiving a payout from a legal settlement or annuity over 10 or even 20 years?

call imperial structured settlements. the experts at imperial can convert your long-term payout into a lump sum of cash today. begins with back pain and a choice. take advil, and maybe have to take up to four in a day. or take aleve, which can relieve pain all day with just two pills. good eye.

>> as far as the eye can see, a press of excited youngsters from if all over the region are on hand for the return of elvis presley to tupelo, mississippi, the town where he was born. [cheers and applause] megyn: the king. elvis presley showing he could still draw a major crowd in that footage. fans today still flock to commemorate the life of the king. coming to graceland to mark 35 years since the superstar's death with a massive candlelight vigil. organizers estimate 75,000 people showed up for this year's memorial that began last night, and for the first time ever, elvis' former wife priscilla and their daughter, lisa marie, attended the annual event together. elvis died from a heart attack after battling prescription drug abuse for years. he was only 42 years old. isn't that hard to believe? unbelievable.

we have a major ruling on one key swing state's new voter id rules that could have a ripple effect from coast to coast. a pennsylvania judge, you know how important pennsylvania is to the electoral college, has just upheld the law passed in that state that requires voters to show photo id. on election day. these laws have become controversial. judge robert simpson says opponents who argued that the new rules could end up denying some actual citizens their right to vote failed to show that the law violates the state constitution. joining me now, jay sekulow, executive director of the american center for law and justice, and this, this is considered a major ruling by the folks who have been supporting voter id laws. they are supported by the vast majority of the american public. it's high numbers. >> right. megyn: support these laws. but this is a major ruling for those who support the laws why,

jay? >> well, number one, you've got a judge that's issued here almost a 55-page opinion that says that the integrity of the voting process is protected by having voter id laws. and these photo ids -- by the way, in many pennsylvania that photo id can be even a college, you know, college id. so they have a lot of parameters. they're giving out free voter ids throughout the state, they're doing a huge educational campaign. but the judge said this is going to protect the integrity and reliability of the voting process. and, you know, all of us are aware of how a few votes can make a big difference. we've seen presidential elections turn on 543 votes. so you take a state like pennsylvania and other states, ohio, where these voter id laws go into effect, they want to protect the integrity of the voting process. this ruling, i think, sets forth a very compelling, reasoned opinion as to why voter ids are constitutional and, megyn, you know, the one thing i can't understand from the opponents of these laws, if you go into the

department of justice -- because in some of these cases the doj's filed on the other side -- when i go into the department of justice, i've got to show my driver's license. they go through a photo id check. i'd say the same thing for voting. i don't think this is a big deal, especially when it's so available to get these different kind of voter ids that they're going to have available. i think it's a great decision and well-crafted legislation too. megyn: they already stated they're going to appeal, the losing side says they will appeal, so there's a question of whether new precedent will be set. out of indiana a couple years ago, if this winds its way up through the appellate courts and results in another decision of holding voter id laws from a higher court, then that will make it tougher and tougher for the department of justice as it has under this investigation to continue to challenge these voter id laws. they continue to say, jay, that they disenfranchise legitimate voters. >> and this judge says there was absolutely -- he took testimony over a week, there was absolutely no evidence of that.

because there is no evidence of disenfranchisement. and another important point you make, this case actually goes from the trial court to the state supreme court. there are six justices currently serving on the state supreme court. the aclu would have to convince four of those justices -- by the way, three republicans, three democrats -- they're going to have to convince four justices that the trial judge was incorrect, but he wrote a very extensive factual finding and a thorough legal analysis, and i think you're going to see this case is a precedent setter, and i think what happens in pennsylvania may effect the rest of the states involved. you have the indiana supreme court decision, it's a big deal. very significant case. -- megyn: even jonathan turley who is a well-known left-leaning constitutional authority wrote a piece calling the opinion well reasoned and said in his opinion it would be difficult to e reverse this on a go-forward basis. the doj doesn't like these laws at all, and they have, they get to give their stamp of approval

on them. most states you pass this law, it's law. you've got to show photo id at the polls. in certain states, in particular in the south where there's been a history of the disenfranchisement of voters, the doj had to approve it up front, and it hasn't. they have come out -- and folks that are just in support of these laws, this is the reverend al sharpton -- and said this is a systematic method of blocking the vote and said they've got to continue this fight because this is all about reducing turnout, reducing turnout of legitimate minority and senior democratic voters. >> it's about reducing fraud. and to me, i can't understand. do they really believe that minorities in the united states can't get access to voter? because that's nonsense. i mean, voter id especially in pennsylvania, they're making this thing widely available. i know in the texas they were complaining you'd have to drive, you know, 50 miles, but they've remtitied that situation as well -- remedied that situation as well.

look, these are close elections. every legal vote should count, but legal votes. megyn: right. >> when you have elections this close, reliability is key. megyn: jay, thank you. coming up, a new controversial over a became symbol of faith found at ground zero. seems they haven't been moving much lately. but things are starting to turn around because of business people like you. and regions is here to help. with the experience and service to keep things rolling. from business loans to cash management, we want to be your partner moving forward.

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>> a 20-foot-high section of steel beams shaped like the cross was found. throughout the recovery effort at ground zero, amid grueling conditions and unbearable heartbreak, the cross became a source of hope and faith. workers began to write on the cross the names of the dead, and weekly masses were held at the cross' base. megyn: well, that was governor mike huckabee telling part of the story of the so-called 9/11 cross, a symbol at ground zero

that became an icon for recovery workers and visitors and beyond. that icon is considered so important to the 9/11 story that it is now featured at the ground zero memorial. but a lawsuit from an atheist group is now challenging that and asking a court to order that the cross be removed. gregg jarrett live from our new york newsroom with more on this. >> reporter: megyn, are two steel beams shaped like a cross a religious symbol or a historical artifact of one of the worst tragedies to befall our night? well, that's the legal issue for a federal judge. just before dawn september 13th, workers searching the ruins for survivors and the dead came upon that 17-20-foot-high-al beams. and as governor huckabee said, the grueling conditions, the heartbreak there, that cross over the days and weeks ahead became a source of hope and solace and i said separation regardless of -- inspiration regardless of religion.

>> this is a cross for all people. not just for christian, but for all people who gather here to pray in god's love. >> reporter: those are the words of father brian jordan at a speech at ground zero, but now a group called american atheists suing to stop that cross from being displayed at the 9/11 memorial claiming it causes them mental pain and anguish by constitutionally established religion, thus making them feel be excluded. and its president is quoted as saying this: >> reporter: well, memorial operators say that cross has multiple meanings that include and transcend religion, an historical object that helps tell the story of the heroic

rescue and recovery effort. it is among, in fact, a thousand artifacts, photos, oral histories and videos on display. they point out, look, this is no different than hundreds of religious paintings routinely displayed at government-supported art museums and, of course, have held that does not violate the first amendment establishment clause. so, megyn, we'll wait and see what the courts do with this one. megyn: wow, what a story. thank you. one of the president's most famous achievements -- not really the achievement itself, but his comments about it are now being questioned. a group of former special ops soldiers launching a web video saying the white house has taken too much credit for the death of usama bin laden and, they believe, shared too much critical intelligence through leaks. coming up, we will speak with one of the seals featured in this new documentary. plus, the young woman you see here died in a car crash. but when her family went to

court, they found out that her insurance company was not on her side and was taking a position that was aligned with the man who killed her. her insurance company. this case is gown on fire on the -- going on fire on the internet, it involves progressive insurance which has taken a real hit to its reputation this week. we'll examine whether that's fair in today's kelly's court. and have democrats stepped on a land mine with a new line of attack on governor romney? we'll debate next, fair and balanced. >> i think the democrats are discovering they stepped on a land mine with medicare. the republicans can now argue that obama is actually taking the money away from your grandma today and for the next decade.

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megyn: fox news alert. we just received word a short time ago that the family research council is now planning a news conference for 3:00 p.m. today regarding the shooting that took place on its premises yesterday. remember, this is a conservative advocacy group that argues primarily for traditional family issues and a shooter, went into the facility yesterday and opened fire, shooting a guard in the arm. he is expected to be okay. the shooter is in custody. we're also awaiting the first court appearance for the suspect in connection with this shooting in just a bit. that suspect shown here is 28-year-old floyd lee cork

kins. he is facing charges of assault with intent to kill and transport porting firearms across state lines. we're glad to be joined by tony perkins. he is the president of the family research council. this is his first interview since the events of yesterday. he will join us live next hour when paul ryan first got named as mitt romney's running mate we heard a lot of folks say that was political malpractice by mitt romney. why would he want to call attention to ryan's plans for entitlement reform, his plans for medicare, et cetera. today, a growing number of voices on the right suggesting that in fact, democrats stepped on a landmine with that line of attack. democrats having blasted the gop plan to reform medicare in the past few days and now they are being forced to

defend the fact that the president paid for the health care overhaul in part by taking money from medicare. cuts to medicare. that is how the president himself put it. political commentator charles krauthammer here on last night's "special report". watch. >> i think the democrats are discovering they stepped on a landmine with medicare. the republicans can now argue obama is actually taking the money away from your grandma today and for the next decade whereas the ryan plan, contemplates a change which begins in 10 years, which would exempt anybody who is in the system today, which doesn't reduce the spending in medicare. megyn: joining me now, julie roginsky, fox news contributor and former political advisor to new jersey senator frank lautenberg. and ben ferg gone ferguson founder of icon radio network and host of the ben ferguson show.

dana perino was on the five, lamenting she thought republicans didn't do good enough job showing the fact that obama care was paid for in part by $500 billion, depending on the estimate, between 5 and 700 to medicare. she thought really more attention should have been called to that. and now, she and other republicans are rejoicing that because the democrats have gone so hard after the romney-ryan ticket on the issue of medicare it has given, opened a window of opportunity. ben, do you see it that way? >> absolutely because the fear-mongering is not going to be backed up by stats and figures. barack obama when he passed obamacare, remember he said, this is fiscally sound, it will not cost any extra money. this will be balanced. they did it taking half a trillion, not half a billion, half a trillion dollars from medicare which is taking away from your grandparents. the ryan plan didn't take any money away. it said those 55 years old

and older you will stay the way we are. if you're younger we'll give you premium choice. same thing with prescription drugs which democrats love, can either take the traditional system or opt outand get private insurance how you want to do it. choice is the same thing obama talked about in obama care. if you have competition it lowers prices. that is what the ryan plan does. but the ryan plan and romney campaign have to tell that sorry so the american people realize they're not taking away anything. they're giving you more options. doesn't cost you another dime. megyn: julie, what do you make of dana's thought on that? this issue, there was so much to discuss on obamacare this issue didn't get highlighted to extent the republicans would have liked and now it has reared its ugly head again because the democrats have been so aggressive going after ryan? >> i love dana perino but she is wrong. ben, i could drive a truck of all things you said which are not factually correct. >> go for it. >> start right now.

paul ryan's budget includes $700 billion cuts you're emphasizing. there is vast difference. obama is taking money and those cuts are coming from extra reimbursements, overpayments, to private insurance companies from waste, fraud and abuse. he is directing that into senior care. the seniors today will not get one cent less in benefits than they cut. >> still cut frogs medicare. you're still cutting. >> first of all you're cutting waste, fraud and abuse. you're not cutting benefits. >> not where he is getting money. >> that is exactly right. he is not cutting from the senior care. he is cutting from overpayments to hospitals. now if you want to say --. megyn: medicare advantage. >> to overpayments to providers. if you think for one second -- >> you're telling me that 50% of medicare is an overpayment because the white house didn't even claim that. >> let my clarify your facts. that 700 billion, the same 700 billion paul ryan cuts except paul ryan cuts it from beneficiaries from sign yors and barack obama cuts

from overpayments to private insurers. if you think private insurers need to get paid more than they charge because the fact they're getting overpayments and seniors as a result will have eight years less of medicare that is the part where you're totally wrong. megyn: go ahead, ben. >> if you're 55 and older nothing changes under the ryan planning. >> wrong, wrong. >> i think i'm smart enough and i think you're smart enough to have a choice put before you the same way we did with prescription drugs that says you can either state with the traditional model or you can use the money allocated to get your own insurance and that is competition. >> wrong. >> why am i not able to have that choice with barack obama. i guess he thinks i'm not smart enough to choose between one or the other. >> wrong, wrong. bottom line what you want to do getting rid of obamacare which is exactly what paul ryan is talking about, things not closing doughnut hole which seniors are subjected to. which means seniors have to pay more today for drug prescriptions than they would. that is exhibit a what paul

ryan wants to do with seniors today. megyn: let's not mix apples and oranges. this is confusing enough already. i don't want to confuse anybody already further. you're arguing paul ryan's plan to reform medicare affects people under 55 because that is not true. you can make the argument that his plan to repeal obamacare may affect them but, let's not confuse people. his plan for a reforming medicare doesn't affect anybody over 5055. >> what he is not talking about reforming medicare. megyn: let's not get involved semantics. i don't want to confuse people any further. do you agree if you're over 55 under paul ryan's reform medicare plan, you're not touched? >> i'm, well, it depends because under paul ryan's plan, finishes, let me finish. ends eight years earlier than it would otherwise because of cuts he is instituting. it depends how long i live. if i live long enough, yes, paul ryan's plan does affect me because essentially does

end a lifetime of medicare eight years earlier. megyn: understood. let me say, and what the republicans have argued is that medicare is going bye-bye, either way if we don't do something. >> i agree. obama extends the life for eight years. megyn: let me just reset. let me reset. look at us having discussion here. it is like, b a b a. republicans want to here the seniors, who already did it, back and forth. back and forth. the average american view are is not paying that much attention. fox news viers. pay attention. they watch cable news. most people are not this much in the woods on it. you tell me, ben, how does it play on november 6th average people out there working living their lives haven't been this deep in it, go to the polls? do they think i'm with romney or i'm with obama when it comes to the issue of medicare? >> poll done in florida said more people are afraid of obamacare than they were afraid of medicare reform. congressional budget has

said, both parties said medicare is going broke. how you fix it. republicans have said 55 and up, we're not touching you. under that, we're going to allow to have a choice which is competition and the same amount of money is going into medicare. you get to decide how you want your dollars spent which is what a lot of americans like. megyn: okay. >> that is how it can be a positive issue. they have to talk about it that bluntly. megyn: last thought on that question, julie. >> bottom line, ben, what you're advocating paul ryan is advocating insuring that the growth of medicare spending will be eliminated it will end medicare. megyn: you won't answer the question. >> i wil answer the question, outside of the din of intricate details what is average viewer going to think of going to the polls? >> average viewer, average senior in florida, this guy wants to do is essentially make sure if i live long enough, medicare will not be there for me because of what he is doing to stop the growth of medicare. >> i love fear-mongering. >> that is not a fear-mongering. associated press ran a truck

through everything you guys are saying. >> i'm terrified. megyn: leave it at that. was that enlightening? was that helpful? i don't think so. sorry. up next, we will speak with one of the former elite soldiers who is now at odds with the president over what the administration has said about the mission to kill usama bin laden and the intelligence leaks that have followed in the months since. three minutes to that. >> u.s. navy seals and particularly "seal team 6", who conducted the bin laden raid [ male announcer ] this is rudy.

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megyn: new conflict on the campaign trail today as a group of former special forces an intel operatives takes on president obama. criticizing the credit that he took for the raid that killed usama bin laden and the intelligence leaks that have taken place since then. in a 22-minute web video, a group of former elite soldiers says it was america that did that work and not a

single commander-in-chief. here's a clip. >> i don't see why anybody would purposely put lives in jeopardy. >> it will get americans killed. ♪ . >> it is my civic duty to tell the president to stop leaking information to the enemy. megyn: the former u.s. navy seal he just saw there joins me now, live, benjamin smith. thank you very much for being here. why did you feel it was important to be a part of this ad? >> well, megyn, first of all, i mean political affiliation doesn't mean anything on the battlefield or in any place around the world where we're furthering american values, the constitution of the united states. what got me into this was when usama bin laden was taken out it came through very quickly of who did it,

what organization, what they did to get it. there was computer-generated images of tactics. from there, they went into the intelligence that they gathered from the operation. and you found this out within 24 hours of the operation. if you're the enemy, you're listening to this and all of sudden, all the tactics that you're using to perform terror upon the united states or whoever, it changes your strategy and your tactics change, so that in essence is telling the enemy, hey, this is what we got. now, you can't go there. you're giving away secrets. if i did it. jon: it is espionage or worse. megyn: the piece is 22 minutes long and it doesn't reflect well on president obama, we'll put it that way. your group says it is nonpartisan but it looks like most of the members of group are republicans or right-leaning, is that fair to say? >> within our oath it

basically states and what it is all based on being american is the constitution. you will support and defend the constitution of the united states of america against enemies both foreign and domestic. that is the most important. being conservative means nothing when we're on that battlefield. what we're out there whether it is a republican or democrat with me on the field of battle or doing a mission if it's leaked to the enemy that we're going to be there or, how we're going to do it, we both die just the same. so it is americans dying. and if stuff is leaked terror comes to the united states and americans citizens die. this is about america. this isn't about right or left. it doesn't even matter who is paying for this. they're saying coke brothers. it doesn't matter if it is michael moore's money that comes in here. this is about america itself and the risk of getting americans killed. that is what is driving us and, you know, my proclivities are fairly conservative but in this matter, this is

america that's at stake and we seem to have an administration that it doesn't matter whether it is obama or romney or, whether it was bush, if these things came out of an administration we would say the same things to no matter who it is and we don't plan on going away. we will hold whoever feet to the fire. megyn: last one, need a quick answer. obama campaign official said no one in this group is position to speak with any authority on these issues and what impact these leaks and are clearly making things up for purely political reasons. can you take that on in dwenlt seconds or less? >> what is his authority to say that? has he done what we have? when you have gone through what we have to do what we do, yet it is our lives at stake. we will die because of what they're saying. they're doing this from an ivory tower and they're saying things that will get them reelected but will get us killed. bill clinton said when they

used us, the seals as a campaign ad, if the seals were killed or captured, it would have been catastrophic for him. megyn: bad for him. i have to leave it at that benjamin, thank you for your service. ck. she said, "take an aspirin, we need to go to the hospital." i'm on a bayer aspirin regimen. [ male announcer ] be sure to talk to your doctor before you begin an aspirin regimen. i'm very grateful to be alive. aspirin really made a difference. 8% every 10 years.age 40,ul we can start losing muscle -- ♪ the one and only, cheerios wow. wow. but you can help fight muscle loss with exercise and ensure muscle health. i've got revigor. what's revigor? it's the amino acid metabolite, hmb to help rebuild muscle and strength naturally lost over time. [ female announcer ] ensure muscle health has revigor

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megyn: more now on our fox news alert out of washington. in just over an hour from now the family research council will hold a news conference discussing yesterday's shooting at group's headquarters. we're awaiting for the first court appearance for the suspect. that could begin any moment. steve centanni live in washington. steve? >> reporter: megyn the suspect in the shooting appearing in court at this hour. floyd lee corkins of virginia, allegedly opened fire at the family research council and making a statement to the effect that he doesn't like the group's politics.

frc supports traditional marriage and corkins volunteers at a local gay and lesbian center. he is charged with assault with intent to kill while armed, carry as maximum sentence of 30 years. charge of carrying firearm across state lines. carry as maximum of 10 years. the charges could be amended later. they say corkins had 10 sandwiches from chik-fil-a in his bags. dan cathy reportedly is an "f." rc donor as well. the affidavit says, corkins's parents informed fbi special agents that corkins has strong opinions with those he believes do not treat homosexuals in a fair manner. that security guard, identify as leo johnson was hit in the arm and underwent surgery. police are calling him a hero helping to wrestle corkins to the ground and preventing what could have

been a much worse attack. at the scene, authorities recovered .9 millimeter pistol and two magazines with. corkins bought the gun legally and suggesting that he has no prior criminal record. megyn. megyn: steve, thank you. the family research council president, tony perkins, will join us live in his first television interview since the shooting. he will be here. we'll ask him about what happened yesterday in addition to the growing debate now that the family research council appears to have been targeted because the shooter, the suspect, didn't like its policies. and some organizations are even suggesting that this was because a left-wing group, deemed the frc, a quote, a hate group. not long ago. mr. perkins will tell us whether he thinks that could have been the motivation here and what he thinks about this debate. also "kelly's court" takes on the case burning up the internet. caitlin fisher was killed in

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megyn: fox news alert. signs of a shift in this presidential race. welcome, everyone. i'm megyn kelly for the first time in months a polling organization that focused exclusively on swing states is showing signs of positive momentum for team romney. governor romney leads president obama according to this poll by a point across all the swing states, 47% to 46%. last month that poll had the president up by 2. we understand the romney campaign is fueled by an 11-point advantage among independents an is gaining ground in several crucial

states. this is mirrored a bit by scott rasmussen in his polling this week. chris stirewalt is host of "power play." when i saw this, the purple insights poll? who are they? our polling unit says they are pretty well known. this is a legitimate look at how the presidential race is shaking out. you know this group? >> reporter: it's cool. purple is for bipartisanness. it's strategists and pollsters that come together to try to serve both houses equally. they do a pretty good job eight. this poll is conducted in an appropriate fashion and it has good data. megyn: we have been watching -- as much as we would love to think new york and california matter, they don't. we all know how new york is

going to go. the interesting thing in a presidential contest is the swing states. president obama has been leading in most of these states -- when you look at the real clear politics he's leading in all of them. but this purple poll says not so. romney is ahead by one. in ohio they put romney ahead by 2 and in virginia they put romney ahead by 2. ohio and virginia very interesting. rasmussen puts it at a tie in ohio as well. what does this tell you? >> reporter: it tells me these are not statistically significant leads. this is still a tied race. nobody has gotten outside the margin of error. but what it tells us is what you said before, the trajectory for romney has changed. what we saw in swing state polling for so long is the race opens up at a tie and after this incredible barrage of negativity from the president and his campaign against mitt romney personally and against his

character, you saw mitt romney's numbers fall off and you saw the president wer and we saw this last week, the president started to bum out a bit of a lead. now we see a change. and certainly you have to think that romney's selection of paul ryan and the attention that got had something to do with it. megyn: why do you think that? this poll was taken after ryan was added to the ticket, but would it have such an instan taken why is effect? >> reporter: sure. aside from the fact that there is a lot of kompleg that laps. any time you can get your face on the tv screen for a whole weekend and serve days after that your name i.d. goes up. that's very good. that's why they like the conventions and that's why there are bunss after a convention. there is another thing here. you mentioned the increase among independents. independents aren't just undecided, they are not just liberal/conservative. what they are is people who have

rejected the political status quo. these are people who say neither party can accommodate my aspirations. neither party is answering the problems in the country. my theory is for these independent voters who believe something is very seriously wrong with the country, they don't think anybody is rising to the occasion to answer it by going bold, going with a running-mate who basically says i agree, there is a crisis, it's a fiscal disaster the country is headed for, we need to do something big about that. romney for the first time spoke directly to those independent voters who think the country is on the wrong track. megyn: so the extremist label that was slapped on paul ryan by his detractors may have worked to help him with the independents who see through that rhetoric and they may interpret it, it's a guy with bold ideas, let's hear some.

>> reporter: let's hear what he has to say. now it's up to ryan to sell his plan and do that. when you call somebody an extremist. you say what is he saying? in paul ryan's case he sounds like he works at a hardware store. he's not doing it in a way that sound super threatening. maybe they like him. megyn: you look at these polls. this is the latest round of polls and you wait a week in this election and they may change again. but is it possible romney could win this race? i ask that silly question. the conventional wisdom is it's obama's to lose and if you talk the political pundits, so many of them, even those who want to see mitt romney win will tell you behind closed doors they think obama is going to win. >> reporter: here is the state of the race. mitt romney survived. we talked when i was in boston yesterday. there is relief in boston at the romney headquarters that they

made it this far. they got through a spring and summer where the discussion was about tax returns and romney's dog and everything else. and it was vicious stuff. the vampire ads, the cancer ad. romney survived. he wasn't leading but he was still -- you have got to be within a couple bucket. now they believe with the selection of ryan and the new assault on deficits and debt, that ryan can help lead and they can start to make up those baskets and they stayed in the game this long, they think they can do it. there is a good reason to believe that. and the biggest reason is americans still overwhelmingly believe the country is on the wrong track. megyn: i always say to my husband as he puts on duke basketball. there is no point. but i always say, why -- you only need to watch the last two minutes northwest game. just tune in the last two minutes. that's when everybody happens in basketball and we are effectively moving towards those last two minutes, are we not?

>> reporter: that's when we drink the beers in all the minutes before the two minutes. you can't take that away from us. megyn: i want to tell the viewers a funny story. stirewalt said your husband went to duke? i said yes. he said that's another reason to dislike him. i said what do you mean? you said, he knows. just kidding, we love. fox news is america's election headquarters. with the republican national convention less than two weeks away "america live" will be broadcasting live from tampa, florida beginning at 1:00 p.m. monday august 27, not next monday but the one after that. tune in in prime time when bret baier and yours truly will co-anchor our election coverage including our fox news political team.

we'll have all the big speeches. all the big events. you will see chris christie and marco rubio not to mention mitt romney and paul ryan with us, we hope, week after next. new reaction today from the white house as the showdown over immigration policy gets more intense. under a federal program that just went into effect. young illegal immigrants can avoid deportation and get work permits. but arizona governor jan brewer just signed an executive order that blocks those same illegal immigrants from getting a driver's license and other public benefits. william lajeunesse live in los angeles with more. >> reporter: that program is knowned a deferred action. it's a piece of paper issued about it federal government that says an illegal alien can work and not be deported for two years. but what does it mean to states?

the document is supposed to make them eligible for state-issues driver's licenses that don't expire for 10 years. that allows them to apply for services like in-state advertise and subsidized childcare. governor brewer issued an executive order denying tax-pair benefits from those who receive this protection. she claims it did not pass congress, and does not provide illegals a path to season seasonship. therefore they remain illegal and not eligible for benefits. >> i believe the obama administration when they issued their amnesty that it was not right. it was improper. i think it should have gone through congress and been determined by the elected officials. the administration deciding immigration laws.

>> reporter: brewer's opponents hard on the capital to protest. the aclu says those granted deferred action are authorized to be in the u.s. and they are eligible for services and state i.d.s. that question must be opened and answered by the states. so far the white house had this to say. >> i have not seen it and i don't know enough about it to give you a comment on it. the answer to your first question is, yes, this is not a long-term solution. the president believes and fought hard for the dream act and congress ought to pass it. >> reporter: this is where the politics come into play. while the republicans have stayed silent on deferred action. brewer opened a new front for other states and politicians because taxpayer money and states rights are involved. megyn: william, thank you. as we learn more about the man accused of opening fire at the

family research council we have a fox news exclusive. as we take the first chance to speak with the group's president, tony perkins and ask him if he believes as some have charged that this shooting had something to do with some organizations labeling his group a quote "hate group" because of their support for traditional marriage. tony perkins is here live coming up. a brother's quest for revenge goes viral. "kelly's court" takes up the fight of the man who believes his sister's insurance company wrongly sided with the driver who killed her. joe biden saying republicans are going to put african-americans back in chains. in three minutes ann coulter reacts to that and more on the race to the white house. >> because democrats tend to be people who have never held jobs

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megyn: president obama his reelection team and the white house are being hit with new questions about whether the president is running a deeply negative campaign. they come off vice president joe biden told a crowd that included african-americans that the republicans would put y'all back in chains. in an interview with "entertainment tonight" the president himself disagreed. >> you have been on the campaign with me for a day and a half and this is typical of what we do. we are going around the country talking about how do we put

people back to work, how do we improve our schools. and i don't think you or anybody who has been watching the campaign would suggest that in any way we have tried to divide the country. we have always tried to bring the country together. megyn: joining me now, ann coulter, author of "demonic." welcome back. good to see you. >> good to see you. >> there you have president obama telling "entertainment tonight" he's not divisive and his behavior on the campaign trail proves it. >> he's a particularly divisive democrat but they are all divisive. he became a senator to begin with by routing sealed divorce records of his two opponents who were probably going to beat him. this is the axlerod method and the obama method.

cause your opponent to default. but beyond that as described in demonic. this is the perfect time to right. the democratic party gets especially mob like during an election. you will notice how they are always using images and not talking about facts like medicare will be bankrupt for anyone 45 years old or younger. it's always the republicans want to put y'all in chains or bush drove the car into the ditch. geithner said somebody threw the tv over the edge. could we have actual facts? but as with a mob as i describe in the book, they like images and pictures. and suspicions instantly become confirmed fact. there really is no other way to understand how democrats campaign. and how it actually works. megyn: romney is taking a hit already for hypocrisy in taking

issue with joe biden's comments and with what the president did to him or the president's super pac did to him last week in this ad suggesting he caused a woman's death. they come out with this tough ad against mitt romney. he first had a lukewarm response and this week struck back with more vigor. now in response to this whole vice president joe biden comes. they are taking a tougher line. they are saying take your chicago politics back to chicago. that has led to some on the left to charge mitt romney with hypocrisy. listen to chris matthews. >> when is mitt romney going to look around at his own crowd. here he is leading the party that drips with birther talk and slurs of anti-americanism are a familiar chorus and references to food stamps and welfare. perhaps mr. romney should

unchain himself from this nastiness before he tries to play umpire against mr. biden. >> any criticism of a democratic policy is considered a personal attack. welfare and food stamps are policies obama has. he altered the 1996 welfare reform which was the requirement of work. they have tang out work requirements. they have undermined, jet sobbed the heart of d they have jetisonned the work requirement. that's what democrats call a below the belt ad while bind is saying republicans want to put black people back in chains.

that's supposed to be comparable? republicans are terrified people won't understand what they are saying. democrats are terrified people will understand what they are saying. that's why they talk in images and myths and slogans. and that works on a crowd. megyn: how do you get to the point where this whole medicare different many mind-numbing. you live in it so you know. you can explain it so well. but the average american, they have bills to pay and their family to worry about, are they going have a full grasp of where the two parties stand on this issue? or are they going to just believe these sound bites they hear? >> unfortunately the democrats being mob-like, the sound bites work. that's why you get a lot of violence from the left that you don't get on the right. there are some things about the two parties. all of the violence, the rage, the storming the barricades.

the standing outside people's homes, that all comes from the left. i do not know the details of their medicare plans. i know the basics. the most important basic is the ryan-romney plan does not touch social security for anyone 55 years old or younger. meanwhile the media keeps saying, well, the ryan pick is going to hurt romney in states with old people. unless age 54 is old, and i think -- i think you are probably right that 54 -- 54 and younger, 45-year-olds for whom there will be no medicare under the current course, they probably won't care that much. but the people whoo care about social security are going to look and they are going to find out that the romney-ryan plan does not change things for anyone 55 years old or older. in fact it increases medicare payment for them. their medicare gets better under romney-ryan and they will pay

attention to that. megyn: ann coulter, always interesting. thank you. new concerns about voter fraud as people get filled out voter registration forms addressed to pets. [ female announcer ] research suggests cell health plays a key role

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megyn: after kelsey grammer played a politician on tv. he says his real life politics may have cost him an emmy. jay leno asks him why he thinks he was snubbed after winning a golden globe for his role in "boss." he says it may have to to with the fact that he is a declared out of the closet republican in hollywood. you can hear more from kelsey grammer when he appears on ""the

o'reilly factor."." that will be interesting. growing fears on election fraud as folks get prefilled out registration forms but they don't have your name on it. they have the name of your dead pet or dead relative or live pet. it's very problematic. yush pet shouldn't be on there. the document look official about it turns out they are not coming from election administrators but from a non-profit group and that's causing some controversy. eric shawn is live in our new york city newsroom. >> reporter: this voter registration form looks official, right? and it tells people to mail it back to the voter participation center. let me get it there. office of the secretary of state, elections division, austin, texas. so you think this is from the

government. wrong. it's a private group. the group that sent these out is called the voter participation center based in washington, d.c. and they are trying to register people across the nation to vote. they send these forms out but because of mailing list errors some of them have gone to dead people, non-citizens, children and even dogs and cats. the louisiana secretary of state calls the mailings disruptive and confusing. he charges what the group does could lead to voter fraud. >> i understand there will be errors. but to the magnitude of what we are getting in louisiana or did get, it's just -- it's ridiculous. i think it needs to be exposed for what it is. >> reporter: the group says it's trying to sign up 73 million americans who aren't registered, targeting single and divorced women and minorities. many of the groups officials are

former democratic official and consultants including veterans of president clinton's and obama's campaigns. but a lawyer for the group says it's strictly non-partisan and calls claims of voter fraud far-fetched. he says they are trying to fix any problems. >> there will be tighter screening processes in place and things will be improving and these opportunities for someone filling out a form who shouldn't receive the form in the first place will be reduced more and more over time. >> reporter: so far they say they have registered 1.5 in new voters. it does say this mailing has been paid for by the voter participation center. megyn: we received one of these for basha and i asked her how she thought the campaign was going and she said ruff. see you, eric.

"kelly's court" today takes on the case of the insurance claim taking the internet by storm. following his sister's death in a car crash she got hit by a guy who ran a red light, they say. this woman's brother has gone on youtube and online and he is livid at progressive insurance claiming that that company rather than adequately defending his sister and paying her the money that he says she was entitled to, her estate, they went into court and sided with the person who killed her and tried to blame her for the crash. we'll talk about it in today's "kelly's court." new questions after this accused gunman walks into the headquarters of conservative based family research council and opens fire. did the frc's label slapped on it by a left wing group as a "hate group" contribute to the

violence as some are claiming? family research council's tony perkins is here live. >> i would say in this case the security officer is a hero as far as i'm concerned. he did his job.

megyn: brand-new reaction to the shooting at the family research council headquarters in washington, d.c. yesterday. just minutes ago the suspected gunman made an appearance before a federal judge. the 28-year-old suspect is floyd

lee corkins. he walked into the frc headquarters and reportedly said quote i couldn't like your politics or something to that effect according to police before he shot a security guard. despite being injured, that same security guard wrestled the gunman to the ground. that security guard's name is leo johnson. he's being hailed as a hero as he recovers in the hospital. the fbi label.this as possible domestic terrorism. the debate is intensifying about whether frc, family research council, having been labeled a hate group by the southern poverty law center and identified as such by others more recently may have contributed to this attack. joining us now for a fox news channel exclusive is tony perkins. president of the family research council. welcome back to the program. >> good to be with you this

afternoon. megyn: our condolences on what happened at the frc yesterday and the injury to this guard leo. we understand he's doing all right. is that true? >> leo is doing well. i want to express my appreciation to those literally from around the world that have communicated with us that they were praying and concerned for leo and our entire team. i was with leo when he came out of surgery at midnight. he's not a uniformed security guard. he's actually our buildings operation manager. he, unarmed. and what happened as you described, this man comes in and has a gun, leo despite being wounded unarmed the man and holds him until others can come and the police can come. it truly was heroic as we know the intention of this man were clearly evil to do massive

damage at frc. megyn: he entered the facility with a .9 millimeter handgun. he reportedly had 15 sandwiches from chick-fil-a on him. it does appear he meant to inflict serious damage within the walls of your facility. is that what you believe as well? >> well, let me be very clear here that floyd corkins was responsible for the wowrngd of one of our colleagues and friends at the family research council. but i believe he was given a license to do that by a group such as the southern poverty law center who labeled us a hate group because we defend the family and stand for traditional orthodox christianity. there is no room for that in a society that such as ours that is governed by a constitution and where we shape our laws through elections and through

public policy debates. and i think it's time for people to realize what the southern poverty law center is doing with their reckless labeling of organizations they disagree with. megyn: i know you were unhappy with that designation and you asked for a debate with the southern poverty law center about that label. what was their response? >> just what you are getting from me. silence. they didn't say anything. here is the truth. they don't want to debate. that what's this is all about. it's about marginalizing and silencing those they disagree with. they did this up in the state of minnesota with a parents group that was defending a policy that the school board had adopted. they file suit against the school board, the parents defend it and they slap the label of hate group on it so it marginalizes them. the media repeats this every

time they talk about these groups. that marginalizes groups and it opens up for people who are i am bammed like corkins who comes in and literally had the intent of killing people here yesterday. i'm not saying that the southern poverty law center is responsible for the shooting. mr. corkins is responsible for the shooting. they are responsible for creating an environment that led to yesterday's shooting. megyn: we invited the southern poverty law center to come on. they declined as of this point at least. but can you make the link? the southern poverty law center came out with that label in 2010 and this is the first time anything like this happened. we have crazy and evil and awful individuals in this society who are prone to violence. is it fair even though you may not like the charge by the poverty law center, is it fair to engage in any linkage? >> i think if this would have happened a week after that label

came out i think it would have been inappropriate to make that linkage. but this has been over two years now and what we have signs an escalation of that term used every time someone opposes whether it's same-sex marriage or some other policy. and that's been in the news the atlantic two weeks with chick-fil-a. the whole chick-fil-a appreciation day and mr. cathy's support for traditional marriage. there were a series of reports that chick-fil-a supports the family research council. a certified hate group by the southern poverty law center. that's in stories all across america. chick-fil-a gave us about $1,000 a few years ago. they clearly have not been the sole support of the family research council. we certainly invite their support as other groups, other individuals whose rights we stand for and defend. but that was clearly part of -- let me say, based upon the

evidence would suggest that that is a part of the contribution of what led mr. corkins to do what he did yesterday. he had 15 chick-fil-a sandwiches in his backpack along with 50 rounds of ammunition. that's not generally what you walk out to have a pick number lunch with. megyn: i want to point out that there has been a joint statement issued by 25 lesbian-gay-by sexual leaders saying they were saddened to hear of this news of the shooting. their hearts oh out to the victim and his family and coworkers. they say roadless of the motive they reject and condemn such violence. >> i appreciate that. we have had a number of civil conversations with those on the other side and the issues we work on. i appreciate them speak out against such violence. there is no room for that in a society such as ours. if we want differences of

opinions, that's fine. but let many let all the facts out on the table and debate the issues. let's not use intimidation or acts of terrorism to try and silence portions of our public. megyn: do you think this was an act of domestic terrorism as the fbi is investigating? >> well, megyn, i spent about five years working with the state department in anti-terrorism back in the 90s and training foreign police officers and anti-terrorism so i'm somewhat familiar with what terrorism is. tear rich is designed to intimidate and to drive people back and make them fearful. that i believe would describe what they tried to do here yesterday at the family research council. and by extension to traditional values, supporters, christians across the nation. but i want to tell you, it's not going to work. we are not going anywhere. we are more committed today than we were yesterday to defending and advancing faith, family and freedom here in our nation's

capital. we'll continue to be a voice for people across the nation who share these concerns and values. megyn: tony perkins, thank you so much for being here. all the best to leo johnson, too. we are taking your thoughts on it. follow me on twitter and let me know what you think. coming up, the heartbreaking case of a young woman killed by a driver who ran a red light. her family says her insurance company only made matters worse. instead of coming and defending what happened to her, defending her, they went into court and side with her killer. now her brother's quest to challenge that insurance company lands them all in "kelly's court." are you receiving a payout from a legal settlement or annuity over 10 or even 20 years? call imperial structured settlements.

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megyn: "kelly's court" is back in session. on the docket today, the insurance claim taking the internet by storm. it started when kaitlyn fish was killed in 2010 by an under insured driver who ran a red light and hit her. but when it came time for

kaitlyn's family to collect on her insurance policy, her brother blogged and said her insurer progressive refused to pay the claim and then went into court and tried to blame the accident on kaitlyn. progressive maintains there were conflicting accounts about who really was at fault. and said this case needed to go to trial to get to the truth. the jury sided with kaitlyn fisher's family. but her brother says it was clear from the very beginning all the way through the court proceedings where the lawyer for progressive stood. >> he defended that guy in the case. he argued to the jury in his opening statement that he should not be found negligent. he cross-examined our witnessed. he conducted direct expam nation of their with its and at the end made a closing statement and argued the other guy had a green light and my sister had a red

light. megyn: that brother is very angry about what no aggressive did and progressive is facing a p.r. firestorm. so we brought on our legal analyst to help us get to the bottom of what really happened. mercedes colwin and david wohl. if you can explain, i think a lot of people worry if they have a car accident their insurance company is going to not be there for them, right? that's what this guy is alleging. he's alleging not only was progressive not there for kaitlyn's family but they had the nerve to go into court and claim she was the one to blame and side with the man who killed her. >> the guy who killed her had a $25,000 insurance policy so that wasn't enough for a wrongful death. so she had an under insured policy with progressive. rather than waiting on the sidelines, progressive actually

went into court with their $800 an hour lawyers and tried to prove that the young lady that was their insured was responsible for her own death and the other guy who killed her was not. megyn: because -- the reason progressive did that because in maryland if you are 1% liable for the accident you don't get any recovery. if progressive could prove their client was even a little bit responsible for that accident, they didn't have to pay, and they wanted not to pay, david. >> that's it. there is plenty of evidence she was maybe 50-50, maybe 75-25. but certainly not 1%. for them to breach their fiduciary duty opens up a bad faith lawsuit that could bring huge punitive damages. to go into court against your insured and side with the defense and try to prove your

own insured is responsible for her death. megyn: the brother says that essentially what happened in court was progressive was defending -- was acting as counsel to the guy who killed progressive's client. that's not true they weren't actually representing the guy who killed date lynn but they were standing next to that guy making the same arguments. >> they identified themselves early on as we are counsel for progressive. they were fighting under that maryland law you just mentioned. the under insured motorist policy doesn't kick in if you are responsible. megyn: explain that in more simple terms. >> the law says insurers, carriers will not pay the under insured. he had a $25,000. but there is a catastrophic

loss. this young woman died as a result of this accident. $25,000 is not going to cover it. so maryland law requires insurers are only to pay if it's established that person was not at fault. megyn: had no fault. progressive had no legal obligation to pay if kaitlyn was even the tiniest bit responsible for this accident. they went into court to say there are conflicting accounts that suggest she may have been a little responsible for this extent and members of the jury if that's true, we are not just nice guys. we are in business. and business deal we had says we don't have to pay. >> exactly. we know there are depositions and people have been examined. there have been after day of its. so d there have been affidavits. we know by the time it gets to

trial there are two sides of the story and it's not definitive one way or another. megyn: we'll talk about whether that's true or whether they were using that as an excuse after the break. you know what i love about this country? trick question. i love everying about this count! including prilosec otc. you know one pill each morning treats your frequent heartburn so you can enjoy all this grt land of ours has to offer like demolition derbies. and drive thru weddings. so if you're one of those people who gets heartburn and then treats day after day,

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megyn: now you have the brother of katie saying if you were insured by progressive and they owe you money they will defend your killer in court in order to not pay you on your policy an bases that claim in part on hissal gaights was very clear what happened here. that katie got hit by somebody who ran the red light. she had the green. there was only one witness to gave a statement on the date accident and that witness said she had the green. the other guys insurance company settled immediately so he says it was only progressive who

dragged its feet and decided to have a trial rather than foirng under the policy. >> in any jurisdiction if you have a reasonable belief there is layability you have to fork up. it's outrageous the way they handled this. what are their insureds going to believe. when i pay my premiums every month and i'm t-boned and killed by another driver, that this insurance company will go to the defense of the guy who killed me and try to prove he's not liable. but they have a good faith obligation to represent the people that pay those premiums. >> they have another obligation here to all the other policy holders. it is a post money. he cannot give all this money out until it is proven. that what the issue is. >> $75,000. >> who is going to pay for it?

the policy holders. it's all of us. all policy holders. the fiduciary duty is not just person who pays the premium it's every one. it's a post money. that's why they do what they have to do. it's not a popular thing to do but they do it to protect all the policy holders. megyn: the jury award her $760,000 in damages. >> wham left of the policy is $75,000 after the costs and the fees. that's the maximum they will get under the policy unless they bring a bad faith. but it's probably unlikely. megyn: progressive is dealing with the media fallout and the p.r. battle. people can make up their own minds. the video you have to see to believe. a race car goes flying off the side of a road and tumbling down a mountain. its incredible tale of survival.

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