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Watchdog group questions legality of Special Counsel appointment to investigate Trump

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New special counsel Jack Smith’s constitutional qualifications for the position are suspect, according to a government watchdog group prepared to take the question to the Supreme Court

The core question has nothing to do with Smith’s legal credentials for the appointment to investigate documents seized from former President Donald Trump’s home. Rather, the National Legal and Policy Center (NLPC) contends it raises questions about the Appointments Clause of the Constitution. 

A principal officer requires appointment by the president and confirmation by the Senate, the same as other U.S. Attorneys. And Congress did not explicitly give the attorney general authority to appoint a chief prosecutor. 

The expiration of the independent counsel statute after the 1990s investigations into former President Bill Clinton and more recent Supreme Court decisions striking down environmental and eviction regulations would not seem to have much in common. 


U.S. Attorney General Merrick Garland delivers remarks at the U.S. Justice Department Building on November 18, 2022 in Washington, DC. 

U.S. Attorney General Merrick Garland delivers remarks at the U.S. Justice Department Building on November 18, 2022 in Washington, DC. 
(Anna Moneymaker/Getty Images)

However, the NLPC says both bare on the appointment of Smith, a former assistant U.S. attorney in Tennessee and former chief of the Justice Department’s public integrity section. More recently, he was a war crimes prosecutor with The Hague.

Days after Trump announced he would run for president in 2024, Attorney General Merrick Garland named Smith as special counsel to investigate both the documents kept at the former president’s Mar-a-Lago home and Trump’s challenge to the 2020 election results. 

In 2019, the NLPC lost a challenge against the appointment of special counsel Robert Mueller in the Russia investigation, but the matter never reached the Supreme Court. Also, the plaintiffs contend the district and appeals courts ducked the “Major Questions Doctrine,” regarding what agencies can and can’t do when Congress has not spoken directly to the issue. 

Anyone subpoenaed or indicted by the special counsel’s office in this case should challenge Smith’s authority all the way to this Supreme Court regarding the “Major Questions Doctrine,” said Paul Kamenar, counsel to the NPLC.

“We will need a client, either someone who is indicted or someone who is subpoenaed to appear before the grand jury,” Kamenar told Fox News Digital. 

In 2019, the center lost in the D.C. Court of Appeals in challenging the Mueller appointment and their client–Roger Stone aide Andrew Miller


Miller opted to comply with the subpoena to avoid prison time for contempt rather than appeal to the Supreme Court. 

Still, the NLPC believes the matter should be adjudicated by the high court, arguing the district and appeals court ducked addressing the “Major Question” doctrine.

Jack Smith was appointed to be special counsel looking into two major Trump investigations.

Jack Smith was appointed to be special counsel looking into two major Trump investigations.
(Justice Department)

“We lost in the district court. In the court of appeals, it took four months to decide, and they dismissed in a very short, poorly argued opinion,” Kamenar said. “We were not able to appeal to the Supreme Court because our client was faced with prison and he has a family.” 

A three-judge panel wrote the 16-page opinion from the 2019 Miller case in the U.S. Court of Appeals for the D.C. Circuit.

“Because binding precedent establishes that Congress has ‘by law’ vested authority in the attorney general to appoint the special counsel as an inferior officer, this court has no need than to go further than to identify the specific sources of this authority,” the opinion says. “Miller’s cursory references to a ‘clear statement’ argument he presented to the district court are insufficient to present that issue for appeal and it is forfeited.”

At issue is whether a special counsel — with the essential power of a U.S. attorney or chief prosecutor — can be named without Senate confirmation. This goes back to the expiration of the independent counsel statute after Ken Starr’s investigation of Clinton. 

Congress allowed the statute to expire in 1999. However, then-Attorney General Janet Reno’s Justice Department established a special counsel regulation. But Congress never approved the authority to name a special counsel, or someone outside the Justice Department, who wasn’t confirmed by the Senate. 

FILE: Former President Donald Trump's Mar-a-Lago club in Palm Beach, Fla., Tuesday, Nov. 8, 2022.

FILE: Former President Donald Trump’s Mar-a-Lago club in Palm Beach, Fla., Tuesday, Nov. 8, 2022.
(AP Photo/Andrew Harnik)

Only two individuals served as special counsels. Reno appointed former Republican Missouri Sen. John Danforth in 1999 to investigate the raid at the Waco, Texas compound that happened in 1993. Then, in 2017, the Deputy Attorney General Rod Rosenstein — after Attorney General Jeff Sessions recused himself from the case — appointed former FBI Director Mueller as special counsel to investigate Trump and Russia. 


In other cases, such as the Valarie Plame case during the Bush administration, a Senate-approved U.S. attorney, Patrick Fitzgerald, was named as a special prosecutor. 

Mueller’s team subpoenaed Miller to appear before the grand jury. The D.C. Circuit Court of Appeals upheld the district court ruling but didn’t address the plaintiff’s argument about whether the Justice Department regulations can authorize the attorney general to appoint a prosecutor without such authorization by Congress. 

Kamenar, of the NLPC, contends recent Supreme Court rulings are relevant in affirming that federal agencies are limited in making their own regulations without Congress. 

The Supreme Court in 2021 invalidated the COVID-19 eviction moratorium rule by the Centers for Disease Control and Prevention. Earlier this year, the high court struck down a greenhouse gas emission rule from the Environmental Protection Agency. In both cases, the reason was because the matters were not authorized by Congress. 

In this case, Kamenar contends that Reno overreached as attorney general with a regulation establishing an office similar to an independent counsel, naming someone outside the department. 

As with any regulation and congressionally-enacted law, the special counsel regulation is weaker than the former independent counsel statute. 

An independent counsel, who was appointed by a three-judge panel in a federal court under a post-Watergate law, could not be fired by the executive branch. A special counsel is appointed by the attorney general and can be fired. 

Former U.S. President Donald Trump gestures during an event at his Mar-a-Lago home on November 15, 2022 in Palm Beach, Florida. Trump announced that he was seeking another term in office and officially launched his 2024 presidential campaign.  

Former U.S. President Donald Trump gestures during an event at his Mar-a-Lago home on November 15, 2022 in Palm Beach, Florida. Trump announced that he was seeking another term in office and officially launched his 2024 presidential campaign.  
(Joe Raedle/Getty Images)

The question doesn’t apply to special counsel John Durham, appointed in late 2020 by then-Attorney General Bill Barr to investigate the origins of the Russia collusion narrative and Steele dossier. That’s because Durham, a career federal prosecutor, was nominated by Trump and confirmed on a bipartisan basis in the Senate to serve as U.S. attorney for Connecticut. 

“Jack Smith was not confirmed to a position by the Senate, as opposed to John Durham,” Kamenar said. “Bill Barr did the right thing constitutionally in nominating him.” 

Since Smith’s appointment, several issues emerged about his past. As chief of the public integrity section, he contacted controversial IRS official Lois Lerner in 2010 “to discuss how the IRS could assist in the criminal enforcement of campaign-finance laws against politically active nonprofits,” according to a 2014 report by Republicans on the House Oversight Committee about the IRS targeting scandal of tea party groups. 


He also led prominent cases against former Virginia Gov. Bob McDonnell over accepting gifts and against former North Carolina senator and 2004 Democratic vice presidential nominee John Edwards for payments to his mistress, the Washington Examiner reported. Both cases ultimately ended in acquittals. 

Meanwhile, Smith’s wife, Katy Chevigny, produced a movie about former first lady Michelle Obama.



Dianne Feinstein described by WaPo, NYT, AP as ‘centrist’ Dem despite progressive voting record

The liberal media are portraying the late California Sen. Dianne Feinstein as a “centrist Democrat” despite her progressive voting record. 

Feinstein, who died Thursday night at age 90, is being widely remembered as a trailblazer for women in the Congress. 

According to FiveThirtyEight’s congressional voting tracker last updated at the conclusion of the 116th Congress in January, Feinstein’s record was “100%” aligned with President Biden

However, obituaries published by several news organizations are raising eyebrows for how they describe her politics. 


Senator Dianne Feinstein obituary photo

Senator Dianne Feinstein has died at age 90.  (Fox News)

The Washington Post ran the headline “Dianne Feinstein, centrist stalwart of the Senate, dies at 90” while also calling her a “centrist Democrat” on social media. 

In the obituary, The Post declared she was “centrist from the start,” citing the fact that “for a time, Mrs. Feinstein owned a handgun” and quoting her biographer who once said how early in her career she “started talking about how the center is so important.” The Post then quickly pivoted to her work pushing the federal assault weapons ban in the 1990s. 

The New York Times similarly reported that Feinstein “called herself a political centrist” but went even further by saying she “often embraced conservative ideas.”


Washington Post Feinstein headline

The Washington Post declared Feinstein the “centrist stalwart of the Senate” in its obituary of the Democrat lawmaker.  (Fox News Digital)

NBC News wrote about Feinstein, “A centrist Democrat, she was known for trying to find common ground with Republicans, sometimes drawing criticism from her party’s liberal members.”

The Daily Beast alleged Feinstein was “steeped in centrist policies no longer fit the times,” citing her “warm embrace” of Sen. Lindsey Graham, R-S.C., during the contentious 2020 Supreme Court confirmation of Justice Amy Coney Barrett as an example. 

The Associated Press tried to have it both ways, calling her a “centrist Democrat” who was a “passionate advocate for liberal priorities.” The AP’s report was aggregated by several news outlets including PBS NewsHour. 


The Los Angeles Times said she “was a centrist who leaned left.”

“She often irked Democratic constituencies. Her party moved sharply to the left on immigration over her time in the Senate, but Feinstein maintained more centrist positions,” the California paper wrote. “She favored stiffer security at the border, punishment for those who illegally employed migrants, and penalties for the so-called coyotes who smuggled them into the United States.”

Dianne Feinstein 1992

Dianne Feinstein the Mayor of San Francisco at the Democratic National Convention in 1992 running for Senate. (Mark Reinstein/Corbis via Getty Images)


Politico cited a 2015 profile of Feinstein from The New Yorker in its obituary, quoting, “Feinstein is sometimes described as a centrist, but it is because her views are varied, not because they are mild; she thinks of herself, more accurately, as a pragmatist.”

Other outlets suggested there was a debate over Feinstein’s politics among critics. ABC News wrote, “Her independence was often seen in more recent years as too moderate compared to other Democrats, especially as a representative of one of the country’s most reliably blue states,” despite her 100% voting record with Biden. 

Deadline Hollywood called her a “moderate Democrat” in its report but wrote on social media she was “considered by some to be a centrist Democrat and to the Right a far-left advocate.”

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House Republicans to vote on ‘clean’ stopgap funding bill despite conservative outrage

The House of Representatives will vote Saturday on a short-term spending bill aimed at avoiding a government shutdown.

The funding patch would last for 45 days past the end of the fiscal year, which concludes at midnight Sunday, Oct. 1. The bill would also include $16 billion for U.S. disaster relief aid that President Biden requested over the summer, Speaker Kevin McCarthy, R-Calif., said on Saturday. 

The bill would also be a “clean” extension of the current year’s funding priorities, which were set by the Democrat-held Congress last year.

It comes after House Republicans tried and failed to pass a stopgap funding bill, known as a continuing resolution (CR), filled with conservative policy items like border security and spending cuts.

The bill is being expedited past normal processes, and will need two-thirds of the House for approval — meaning Democrats will have to vote in favor of the plan for it to pass.


House Speaker Kevin McCarthy

Speaker of the House Kevin McCarthy, R-Calif., talks to reporters just after the Republican majority in the House narrowly passed a sweeping debt ceiling package as they try to push President Joe Biden into negotiations on federal spending, at the Capitol in Washington, Wednesday, April 26, 2023.  (AP Photo/J. Scott Applewhite)

“We need more time to get the job done,” McCarthy told reporters ahead of the vote. McCarthy said he did not want to “punish” military service members or border agents for the House’s failure to pass a budget that ends wasteful spending and addresses border security.

“The House is going to act so government will not shut down. We will put a clean funding stopgap on the floor to keep government open for 45 days for the House and Senate to get their work done,” McCarthy also said. “We will also, knowing what had transpired through the summer, the disasters in Florida, the horrendous fire in Hawaii, and also disasters in California and Vermont, we will put the supplemental portion that the president asked for in disaster there too.”

Republicans’ previous CR proposals did not get any Democratic support, and failed after enough GOP hardliners opposed them. Holdouts argued that a CR on principle is an extension of the previous Democratically-held Congress’ priorities, and is the antithesis of the House GOP majority’s promise to pass 12 individual spending bills laying out conservative priorities in the next fiscal year.

The Democratic leaders

Top Democrats huddled for an emergency meeting after the CR was proposed (Kevin Dietsch/Getty Images)

But the majority of lawmakers on both sides have acknowledged that some kind of stopgap is needed to give them more time to cobble those deals together. The current fiscal year ends at midnight tonight, meaning that if no agreement is passed by the House and Senate, thousands of government employees will be furloughed and “nonessential” federal programs will grind to a halt.


And despite Democrats clamoring for a “clean” CR, it’s not immediately clear if they will support the bill being put forward by the GOP now. 

Rep. Andy Barr, R-Ky., told Fox News Digital that he believes Democrats will vote against the CR to hold out for the Senate’s proposal, which also includes funding for Ukraine aid – something a large share of House Republicans oppose.

U.S. President Joe Biden

The GOP proposal includes President Biden’s call for disaster relief aid. (Photographer: Jacquelyn Martin/AP/Bloomberg via Getty Images)

“I think this may fail because Democrats in the House want a Senate CR,” Barr said. “So what could happen is a pretty low vote number on this…you’ll have Democrats who are voting to shut the government down. And that’s what you’re gonna see. Democrats want to politicize this, and they’re gonna vote to shut the government down.”


House Democratic Leader Hakeem Jeffries, D-N.Y., would not say where he would fall when speaking to reporters before the vote but complained about Republicans having “dropped this on us in the 11th hour.”

House Republicans “lied every single step of the way,” Jeffries said.

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Ramaswamy, Burgum reject Gingrich’s claim that ‘the race is over,’ Trump will be GOP nominee

GOP presidential candidates Vivek Ramaswamy and North Dakota Gov. Doug Burgum rejected claims from former House Speaker Newt Gingrich that “the race is over” and former President Donald Trump is the definitive 2024 Republican nominee at this time.

On “The Ingraham Angle” Thursday, Gingrich said Trump will absolutely be the nominee, and that the lower-tier candidates must ask themselves if they want to get behind him or watch President Biden get re-elected.

“There’s no middle ground here, I don’t think, because you’re either going to get Trump as president or are you going to Biden. And Biden’s re-election would be a disaster for the country,” Gingrich said.

Burgum, polling last among the candidates who qualified for the second GOP primary debate Wednesday on FOX Business, said he has long been told the things he seeks cannot be achieved.


He said he was written off as a gubernatorial candidate in the previous North Dakota Republican primary by double digits, but has since found himself in the top job in Bismarck.

Burgum underlined that he was a strong supporter of Trump’s in his past two electoral runs, but that he has since been outpolling the former president in the Flickertail State’s GOP primary.

“I appreciate Newt’s comments, but listen, I’ve spent my whole life having people tell me what I can’t be and can’t accomplish. So I’d say get in line with everybody else,” Burgum said.

“They said you can’t build a global tech company in North Dakota: We built one with 2000 people. We built a $1 billion company. We did it with kids from small town, and we ended up with customers in 132 around the world.”

Burgun noted how in 2016, he trailed then-North Dakota Attorney General Wayne Stenehjem in major primary polls but ended up pulling off an upset, then winning the general election and being re-elected again in 2020.

“I’ve said all along, I’m going to be voting for the Republican. I’m running against Joe Biden. Joe Biden’s policies on the economy, energy, national security, 180 degrees in the wrong direction. And then I’ve got again, I’ve got more business experience than the rest of the candidates on stage last night,” he added.


Burgum said a top issue for him is American energy independence, claiming North Dakota has more production potential than many OPEC nations the U.S. currently buys oil from and adding China’s IP theft and influence threats are another major concern.

Ramaswamy also disagreed with the contention Trump’s nomination is a lock. He argued Wednesday’s debate was somewhat proof the field needs to be pared down, but that he has taken a different tact toward Trump than his opponets.

While former New Jersey Gov. Chris Christie spent much of the night antagonizing Trump, dubbing him “Donald Duck” for ducking the debate, Ramaswamy said he personally believes the mogul has been the best president in the 21st century.

“Everybody else is making their case versus Trump by bashing him and Monday morning quarterbacking some decision he made. My view is different,” he said.

“I acknowledge he was the greatest president of the 21st century so far, but I have something that he doesn’t, Laura. And it’s really simple. I’m young. I have fresh legs. I’m able to reach the next generation in a way that Trump cannot. That’s undeniable – And that’s how we’re going to take the America First movement to the next level.”


Ramaswamy said that no matter who wins the GOP primary, the winning message belongs to America First movement championed by Trump, himself and others.

“My whole point is I’m an America first conservative, not a Trump first conservative, and not of a big first conservative. And so I’m the one person in this race. I’m not tearing anybody else down,” he added.

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