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Watchdog group questions legality of Special Counsel appointment to investigate Trump

Source image: https://www.foxnews.com/politics/watchdog-group-questions-legality-special-counsel-appointment-investigate-trump

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. 

TRUMP SAYS HE ‘WON’T PARTAKE’ IN SPECIAL COUNSEL INVESTIGATION, SLAMS AS ‘WORST POLITICIZATION OF JUSTICE’

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

AG GARLAND NAMES SPECIAL COUNSEL TO INVESTIGATE TRUMP ON MAR-A-LAGO DOCUMENTS, JAN. 6

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. 

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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. 

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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.

Source: https://www.foxnews.com/politics/watchdog-group-questions-legality-special-counsel-appointment-investigate-trump

Politics

Hot mic catches President Biden telling Cuban lawmaker he has to talk to him ‘about Cuba’

A hot mic after the State of the Union Tuesday evening caught President Biden telling Sen. Bob Menendez that he has to talk to him “about Cuba.”

Menendez, D-N.J., is a Cuban lawmaker and serves as Chairman of the Senate Foreign Relations Committee, an influential committee for initiating legislative proposals in the chamber. 

“Bob, I gotta talk to you about Cuba,” Biden said to the senator. 

The moment was caught on C-SPAN cameras as Biden spoke with Menendez and Rep. Adam Schiff, who House Speaker Kevin McCarthy blocked from joining the House Intelligence Committee. 

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President Biden takes photographs with members of Congress after speaking during a State of the Union address at the US Capitol in Washington, D.C., on Tuesday, Feb. 7, 2023. 

President Biden takes photographs with members of Congress after speaking during a State of the Union address at the US Capitol in Washington, D.C., on Tuesday, Feb. 7, 2023.  (Nathan Howard/Bloomberg via Getty Images)

Menendez is heard replying, “Okay.”

The lawmaker seemed confused by the president’s comment.

“I’m serious,” added Biden. 

BIDEN APPEARS TO GO OFF SCRIPT TO SAY US NEEDS OIL, GAS DRILLING

Menendez, the son of two Cuban migrants, has spent much of his time working in the House of Representatives and later the U.S. Senate on immigration and national security issues.

Senate Foreign Relations Committee Chairman Robert Menendez, D-N.J., in the Dirksen Senate Office Building on Capitol Hill on January 26, 2023, in Washington, D.C. 

Senate Foreign Relations Committee Chairman Robert Menendez, D-N.J., in the Dirksen Senate Office Building on Capitol Hill on January 26, 2023, in Washington, D.C.  (Chip Somodevilla/Getty Images)

Rep.-elect Robert Menendez Jr., D-N.J., and his father Sen. Bob Menendez, D-N.J., on the House floor of the U.S. Capitol, on Tuesday, January 3, 2023. 

Rep.-elect Robert Menendez Jr., D-N.J., and his father Sen. Bob Menendez, D-N.J., on the House floor of the U.S. Capitol, on Tuesday, January 3, 2023.  (Tom Williams/CQ-Roll Call, Inc via Getty Images)

He is also credited with helping push through the Deferred Action for Childhood Arrivals (DACA) policy, which went into effect under former President Barack Obama.

Menendez is currently prioritizing his efforts on “competing with China, confronting the global pandemic, and restoring the United States’ place as a leader around the globe,” according to his official government website.

President Biden exits after delivering the State of the Union address at the U.S. Capitol in Washington, D.C., on Tuesday, Feb. 7, 2023. 

President Biden exits after delivering the State of the Union address at the U.S. Capitol in Washington, D.C., on Tuesday, Feb. 7, 2023.  (Jacquelyn Martin/AP/Bloomberg via Getty Images)

President Biden, center, speaks during a State of the Union address at the U.S. Capitol in Washington, D.C., on Tuesday, Feb. 7, 2023. 

President Biden, center, speaks during a State of the Union address at the U.S. Capitol in Washington, D.C., on Tuesday, Feb. 7, 2023.  (Nathan Howard/Bloomberg via Getty Images)

President Biden addressed competition with China during Tuesday evening’s address, saying he welcomed competition but would act swiftly to push back on any action that threatens U.S. sovereignty. 

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“But make no mistake about it: as we made clear last week, if China’s threatens our sovereignty, we will act to protect our country. And we did,” said Biden, referencing the Chinese spy balloon that was shot down by the U.S. military last week.

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Georgia Senate votes to block COVID-19 vaccine requirements at schools, government agencies

The Georgia Senate approved a measure Tuesday to prohibit schools and most state and local government agencies from mandating the coronavirus vaccine.

The legislation, Georgia State Senate Bill 1, passed the state Senate 31-21. The bill would not apply to healthcare providers subject to federal requirements that employees must be vaccinated to continue receiving federal payments.

A one-year ban on vaccine requirements was enacted last year, and this bill would make that measure permanent.

“We have lived for a year under the previous version of this law,” said Republican state Sen. Greg Dolezal, the bill’s main sponsor. “That law is set to sunset this summer so we just removed the sunset and said that we’re never going to have a day in Georgia where governments refuse services to its constituents based on whether or not they have received a COVID-19 vaccine.”

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The Georgia Senate approved a measure Tuesday to prohibit schools and most state and local government agencies from mandating the coronavirus vaccine.

The Georgia Senate approved a measure Tuesday to prohibit schools and most state and local government agencies from mandating the coronavirus vaccine. (AP Photo/Nam Y. Huh)

Dolezal said he does not believe the government should “discriminate against citizens” based on their vaccination status.

The current one-year ban passed in 2022 is set to expire on June 30.

“We know that there’s been a movement building in America to demonize vaccinations and do it in the name of individual rights,” Democrat Sen. Nan Orrock said, adding that lawmakers who voted for the new bill are “fundamentally signing on to the anti-vaccination movement” and tying the government’s hands should COVID-19 worsen again.

The bill bans state agencies, local governments, schools and colleges from requiring proof of vaccination.

The bill would not apply to healthcare providers subject to federal requirements that employees must be vaccinated to continue receiving federal payments.

The bill would not apply to healthcare providers subject to federal requirements that employees must be vaccinated to continue receiving federal payments. (Paul Hennessy/SOPA Images/LightRocket via Getty Images)

“When we throw bills up on the floor and take votes on them in the General Assembly that result in further undermining the public’s faith in vaccines and in public health measures, I think that poses a danger to all of us in the long run,” Orrock said. “It is not wise.”

Republican Sen. Ben Watson, a medical doctor, said a mandate is not needed since the virus has become less severe.

“The science certainly has evolved, the disease certainly has evolved,” Watson said.

COVID-19’S LASTING IMPACT: ‘LESS ATTRACTIVE’ PEOPLE WEAR MASKS MORE OFTEN THAN OTHERS, STUDY FINDS

A one-year ban on vaccine requirements was enacted last year, and this bill would make that measure permanent.

A one-year ban on vaccine requirements was enacted last year, and this bill would make that measure permanent. (iStock)

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Democrats, meanwhile, claim COVID-19 is less lethal thanks to vaccines and other public safety measures, and that there is no guarantee the virus will remain that way.

The bill now heads to the state House for consideration. 

Dolezal has said he plans to introduce a separate bill to make the current five-year ban on school mask mandates permanent.

The Associated Press contributed to this report

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Biden’s State of the Union touted economic success, but are Americans better off?

President Biden touted his economic accomplishments during his State of the Union address, but Americans across the country shared divided views on how their finances have fared two years into his term.

“If I didn’t work in a restaurant, I don’t think I’d be able to afford to eat,” Romello, a Washington state resident, told Fox News. “I’m dipping into my savings now.”

The cost of living is “crazy expensive” and rent is “mind-blowing,” he said. 

But Michael, of Nashville, said his financial situation has improved.

I make more money than I did three years ago,” he said. 

AMERICANS SHARE HOW THEIR FINANCIAL SITUATION HAS CHANGED UNDER BIDEN’S PRESIDENCY:

WATCH MORE FOX NEWS DIGITAL ORIGINALS HERE

A recent Fox News poll reported that 61% of registered voters disapproved of Biden’s handling of the economy. Additionally, 45% of respondents said economic conditions are “poor” while 35% answered “only fair.”

“We’re building an economy where no one’s left behind,” Biden said Tuesday during his State of the Union address. “Jobs are coming back, pride is coming back because of the choices we made in the last several years.”

Laura of Bellingham, Washington, doesn’t feel she’s in a better position than before Biden took office.

“Definitely worse off, but I still sit in a role of privilege,” she told Fox News. “So I’m fortunate enough to have weathered the storm without it being fully damaging to my family.” 

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Laura said she is worse off financially under President Biden.

Laura said she is worse off financially under President Biden. (Fox News Digital / Hannah Ray Lambert)

But Rich, a D.C. resident, said: “If you look at it closely, the jobs are way up, inflation is down, corporate earnings are way up, wages are up.” 

“So, yes, all in all, I think the economy is doing better, although most people apparently do not think so,” he continued.

U.S. employers added 517,000 jobs in January, and the unemployment rate dropped to 3.4% — the lowest since 1969, according to the Department of Labor. But some economists warned that labor participation rates are still below pre-pandemic levels, though others say the report shows promise for sectors hit hard by the pandemic.

FOX NEWS POLL: STATE OF THE UNION IS DYSFUNCTION, DISSATISFACTION AND DISAPPROVAL

Joe Biden speaks about the progress of the administration's economic agenda.

Joe Biden speaks about the progress of the administration’s economic agenda. (ANDREW CABALLERO-REYNOLDS/AFP via Getty Images)

Meanwhile, some Americans told Fox News they’re preparing for harder times ahead.

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“I’m being a little bit smarter and more frugal,” Pola, of Austin, said. “Especially for somebody like me in the service industry, you definitely have a little bit tougher of a time making your money.”

And a Nashville man said: “Things are more expensive, and I think it’s just digging us into a deeper hole.”

To watch the full responses, click here

Hannah Ray Lambert reported from Bellingham, Washington; Megan Myers from Washington, D.C.; Gabrielle Reyes from Austin; and Teny Sahakian from Nashville.

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