Republican Congressman Thomas Massie, R-Ky., pressed Attorney General Merrick on the constitutionality of appointing Jack Smith as special counsel in a hearing Tuesday. 

Garland testified before the House Judiciary Committee and was questioned by Massie on Smith’s appointment to oversee the classified documents and January 6 probe into former President Donald Trump. 

‘What gives you the authority to appoint a special counsel to create…you’ve created an office in the U.S. government that does not exist without authorization from Congress,’ Massie posed to Garland. 

Massie referenced amicus briefs in the cases brought by the DOJ against Trump filed by former Attorney General Ed Meese under Ronald Reagan – in which he argues that the case that Garland’s appointment of Smith — a private citizen — is in violation of the Appointments Clause of the Constitution. 

‘Not clothed in the authority of the federal government, Smith is a modern example of the naked emperor,’ the brief states. 

‘Improperly appointed, he has no more authority to represent the United States in this Court than Bryce Harper, Taylor Swift, or Jeff Bezos,’ they argued. 

Meese argues that the ‘illegality’ of Smith’s appointment is ‘sufficient to sink Smith’s petition, and the Court should deny review.’ 

Meese and company noted in the brief that Smith was appointed ‘to conduct the ongoing investigation into whether any person or entity [including former President Donald Trump] violated the law in connection with efforts to interfere with the lawful transfer of power following the 2020 presidential election or the certification of the Electoral College vote held on or about January 6, 2021.’

Garland responded to Massie that, ‘there are regulations under which the Attorney General appoint Special Counsel, they have been in effect for 30 years, maybe longer, under both parties. The matter that you’re talking about, about whether somebody can have an employee of the Justice Department serve as special counsel has been adjudicated,’ he said. 

Garland argued that special counsel appointments that he and other AGs, including Attorney General William Barr, have made cite a regulation that points to a statute. 

Meese, however, in his briefs filed in several points in the Trump cases, argued that ‘none of those statutes, nor any other statutory or constitutional provisions, remotely authorized the appointment by the Attorney General of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.’

‘Second, even if one overlooks the absence of statutory authority for the position, there is no statute specifically authorizing the Attorney General, rather than the President by and with the advice and consent of the Senate, to appoint such a Special Counsel,’ the former AG wrote. 

Meese’s brief was even mentioned in a question by Justice Clarence Thomas in the Supreme Court oral arguments over Trump’s presidential immunity – which the high court is expected to decide this month.

‘It seems like you’ve created an office that would require an act of Congress, yet there’s not an act of Congress that authorizes that. And even if it didn’t require an act of Congress, and you’ve already admitted that there was no act of Congress that established this office, it would still require, according to the Constitution, a nomination by the President and confirmation by the Senate,’ Massie said to Garland. 

Iranian-backed Houthi rebels in Yemen have launched two anti-ship ballistic missiles into the Red Sea in the past 24 hours, U.S. Central Command confirmed Tuesday, hours after Greece said attacks declined over the past week.

Central Command said ASBM’s were launched from Houthi-controlled Yemen, though there were no injuries or damage reported by U.S., coalition or commercial ships. 

‘This continued malign and reckless behavior by the Iranian-backed Houthis threatens regional stability and endangers the lives of mariners across the Red Sea and Gulf of Aden,’ Central Command said in a statement.  

Earlier Tuesday, Greek Shipping Minister Christos Stylianides credited closer international cooperation between naval missions in the Red Sea with having reduced the number of attacks by the Houthis. 

‘For us, it is a satisfaction that during the past week we see a notable reduction in the number and intensity of attacks,’ Stylianides told Reuters. ‘It is another proof that the international community with decisiveness can stop this.’ 

Houthis have been attacking shipping vessels in the Red Sea since late October. The militant group has said the attacks are in retaliation for Israel’s ongoing war against Hamas in the Gaza strip. 

Since November, the Houthis have launched more than 50 attacks on ships, killed three sailors, seized one vessel, and sunk another, per the U.S. Maritime Administration. 

The attacks prompted the Pentagon to launch an international mission dubbed Operation Prosperity Guardian in late December to counter the Houthi attacks. 

Over the weekend, joint British-U.S. airstrikes targeting Houthi’s in Yemen killed at least 16 people and wounded dozens more.  

Fox News’ Liz Friden and The Associated Press contributed to this report. 

Forty-two House Democrats voted with Republicans on a bill to sanction the International Criminal Court in response to its top prosecutor seeking arrest warrants against top Israeli officials including Prime Minister Benjamin Netanyahu.

The bill, led by Reps. Chip Roy, R-Texas, and Brian Mast, R-Fla., passed along bipartisan lines in a 247-155 vote on Tuesday.

The modest left-wing support comes despite the White House releasing a statement in opposition to the bill – though the Biden administration stopped short of threatening to veto the measure. 

‘There are more effective ways to defend Israel, preserve U.S. positions on the ICC, and promote international justice and accountability, and the Administration stands ready to work with the Congress on those options,’ the White House said in a statement on Monday.

House lawmakers were engaged in bipartisan talks last month to respond to the ICC after chief prosecutor Karim Khan said he would seek arrest warrants against both Israeli and Hamas officials over the war in Gaza. Those talks apparently broke down, however, with the White House’s statement being the final nail in the coffin.

House Foreign Affairs Chairman Michael McCaul, R-Texas, lamented the lack of bipartisanship in crafting the measure. He told Fox News Digital that he had been working with his Democratic counterpart, ranking member Rep. Greg Meeks, D-N.Y., on a bipartisan compromise, but that their effort had been shut down by the White House.

‘Meeks and I worked out a compromise bill that everybody was happy with and he talked to [House Democratic Leader Hakeem Jeffries, D-N.Y.]. And I mean, our deal is like, if it’s not bipartisan…when we talked to Netanyahu, that’s what he wanted – it’s kind of worthless,’ McCaul said.

‘They raised it to the White House’s attention and they did a complete about-face. And while they were for sanctions previously, now they’re against.’

During debate on the House floor on the measure, Meeks acknowledged the bipartisan effort but criticized the bill being vote on on Tuesday, arguing it had a ‘chilling effect on the ICC as an institution and hamper the court’s effort to prosecute serious atrocities that have been perpetrated around the world.’

Too often in our foreign policy, we turn to sanctions as a first choice rather than a tool of last resort. Sanctions should not be our only go-to punishment to express our displeasure, because they have real consequences,’ Meeks said.

When asked about the breakdown in bipartisan talks earlier, Speaker Mike Johnson, R-La., also blamed the White House in comments to Fox News Digital.

‘I worked on it all weekend. I worked on it up until Sunday, late Sunday, in an effort to make it bipartisan, and I think that members of the House and Senate were interested in doing so. But the White House gave the red light and said that they would not support sanctions, which was unconscionable to us,’ Johnson said. ‘And I think that’s that’s why it sort of broke down. But we had to move. We couldn’t wait any longer. We need to send this message.’

House Majority Whip Tom Emmer, R-Minn., told Fox News Digital that the bill is still not a partisan effort and called on the Democrat-controlled Senate to take up the bill.

‘By passing our nonpartisan bill to sanction the ICC for absurdly equivocating Israel to Hamas as a war criminal, the House just sent a resounding message to the world that we unapologetically stand with our ally over barbaric terrorists. The question remains: Which side will Joe Biden and Chuck Schumer choose?’ Emmer said.

Fox News Digital reached out to Schumer for comment.

House Speaker Mike Johnson, R-La., revealed a ‘three-pronged’ strategy for cracking down on the alleged weaponization of the Department of Justice (DOJ) in a closed-door meeting with House Republicans on Tuesday.

It comes as former President Trump faces criminal charges in two federal cases led by special counsel Jack Smith, as well as charges in Fulton County, Georgia, and a criminal conviction on 34 counts in Manhattan criminal court.

Three people, two GOP lawmakers and a source familiar with the plan, told Fox News Digital that Johnson’s strategy to rein in the ‘weaponization’ of the DOJ is broadly focused on three pillars: oversight, appropriations and legislation.

Johnson updated Trump on the plan ahead of announcing it to his House GOP conference, Rep. Ronny Jackson, R-Texas, told Fox News Digital.

Johnson confirmed his approach during a press conference just after the meeting.

‘We’re going to do everything we can, everything within our scope of our responsibility in the Congress, to address it appropriately. And I announced this morning to our conference, we’re working on a three-pronged approach,’ Johnson told reporters.

‘We’re looking at various approaches to what can be done here through the appropriations process, through the legislative process, through bills that will be advancing through our committees and put on the floor for passage and through oversight. All those things will be happening vigorously.’

Rep. Ralph Norman, R-S.C., told Fox News Digital that he understood Johnson’s timeline for his strategy to include both the next six months, while the House GOP still holds its razor-thin majority, and next year, assuming they keep the chamber from flipping to Democratic control.

Norman paraphrased Johnson’s message to Republicans, ‘It can’t just be words…It’s got to have some action to it, and that’s where legislation comes in. Meaningless resolutions…that’s words. You’ve got to go beyond that.’

The South Carolina Republican said Johnson did not raise the issue of a President Biden impeachment, however, despite Rep. Marjorie Taylor Greene’s threats to force a vote on the matter.

Jackson said Johnson also pointed out that the chairs of the relevant committees – like Oversight, Judiciary and Appropriations – were already exploring ways to crack down on the DOJ.

‘It’s not going to happen instantaneously. This stuff has to be put together and vetted by the conference and then put on the floor, so on and so forth,’ Jackson said. ‘His point was, we’re doing everything we can.’

He said Trump is ‘in the loop on what the plan for the House is.’

Jackson suggested Johnson was looking at a shorter timeline but said the speaker did not give specifics on the matter. 

‘I know there are people that are anxious, myself included, to see something happen. So it’ll be soon,’ Jackson said.

Johnson’s comments come the same day that Attorney General Merrick Garland is on Capitol Hill testifying before the House GOP-led Judiciary Committee.

Fox News Digital reached out to the DOJ for comment.              

Advancing American Freedom, a nonprofit that advocates for conservative values and policy proposals, released a memo on Tuesday touting key ‘triumphs’ from the 2020 RNC platform and encouraging conservatives to continue fighting to defend those key issues.

‘The 2016 Republican National Convention platform, retained in 2020, was the most principled conservative platform in nearly 40 years,’ Advancing American Freedom, founded by former Vice President Mike Pence in 2021, says in Tuesday’s memo.

‘As always, liberal Republicans want to water down many of the Conservative Movements’ favorite planks. Grassroots conservatives must remain vigilant in defense of a strong conservative platform.’

The memo outlines key points from the platform on abortion that calls for protecting ‘Human Dignity and the family.’

‘We assert the sanctity of human life and affirm that the unborn child has a fundamental right to life which cannot be infringed,’ the memo reads, adding that the Republican Party must continuee to ‘oppose the use of public funds to perform or promote abortion or to fund organizations, like Planned Parenthood, so long as they provide or refer for elective abortions or sell fetal body parts.’

Republicans and pro-life groups helped successfully lobbied to overturn Roe v. Wade in 2022, marking one of the most consequential conservative political victories in decades, which Pence told Fox News in 2023 was a ‘new beginning for life.’

The memo also touches on IVF treatment and calls on Republicans to ‘oppose federal funding for harvesting embryos and call for a ban on human cloning.’

‘Marriage between one man and one woman is the foundation for a free society,’ the memo states as a highlight from the 2020 platform. ‘We… condemn the Supreme Court’s lawless ruling in Obergefell v. Hodges.’

The memo goes on to highlight conservative positions on ‘taxes and trade’ as well as foreign policy.

‘Republicans consider the establishment of a pro-growth tax code a moral imperative,’ the memo says. ‘We propose to level the international playing field by lowering the corporate tax rate to be on a par with, or below, the rates of other industrial nations.’

The memo focuses on Ukraine, Israel and Taiwan when it comes to foreign policy, saying that conservatives ‘will not accept any territorial change in Eastern Europe imposed by force’ when it comes to Ukraine while also reaffirming ‘unequivocal support for Israel and rejected two-state solutions.’

 ‘The United States… will help Taiwan defend itself against Chinese aggression,’ the memo says. ‘As a loyal friend of America, Taiwan has merited our strong support, including free trade agreement status, the timely sale of defensive arms… and full participation in the World Health Organization… and other multilateral institutions.’

Republicans will gather in mid-July in the key swing state of Wisconsin to hold their 2024 GOP Convention.

‘Time-honored principles that have delivered enormous prosperity for America should continue to drive policy as the platform articulated in 2016 and 2020,’ said AAF Chairman Marc Short told Fox News Digital.

‘Some in the conservative movement are attempting to move away from these principles, instead chasing big government solutions that resemble the agenda of the left.  Conservatives must not back away from what has created a winning agenda for the American people which is focusing on fiscal responsibility, a free economy, American leadership on the world stage, and defending family values, including the right to life.’

President Biden called former President Trump a ‘convicted felon’ who ‘snapped’ and is going ‘crazy’ after the 2020 election at a campaign event Monday.

The remarks at a fundraiser in Greenwich, Connecticut, were the first time Biden has participated in a campaign reception where he referred to his 2024 opponent as a ‘convicted felon.’ 

‘Folks, the campaign entered uncharted territory last week. For the first time in American history, a former president that is a convicted felon is now seeking the office of the presidency,’ Biden said. ‘But as disturbing as that is, more damaging is the all-out assault Donald Trump is making on the American system of justice.’ 

A jury found Trump guilty of 34 felony counts of falsifying business records in his New York criminal trial last week. Trump maintains his innocence and has claimed Biden and the Democratic Party prosecuted him for political purposes, to damage his presidential campaign.

At the White House on Friday, Biden told reporters, ‘it’s reckless, it’s dangerous, it’s irresponsible for anyone to say this was rigged just because they don’t like the verdict.’ He repeated those comments on Monday and suggested Trump is not mentally well. 

‘Something snapped in this guy for real’ after the 2020 election, Biden said. ‘It’s literally driving him crazy.’ 

He told the audience Trump ‘does not deserve to be president whether or not I’m running.’ 

Throughout most of Trump’s New York trial, Biden and his campaign held back from attacking the presumptive Republican nominee over his criminal charges. It appeared to be an effort to combat Trump’s repeated unsubstantiated allegations that it was a ‘SHAM TRIAL instigated and prosecuted directly from the inner halls of the White House and DOJ [Department of Justice].’

However, that changed last Tuesday when the Biden campaign held a news conference outside the courthouse in Lower Manhattan, which appeared to be a major break with their strategy during the past six weeks of steering clear of the case.

Similar to what the Trump campaign had been doing for the duration of the trial, the Biden team came equipped with high-profile surrogates. They were actor and Biden supporter Robert De Niro, who last week voiced a campaign ad for the president, and former police officers Harry Dunn and Michael Fanone, who fought back against pro-Trump rioters during the Jan. 6, 2021, attack on the U.S. Capitol.

Now, the president is openly calling his opponent a ‘convicted felon’ and making the case that he is dangerous and unfit for office as such.

‘Crooked Joe Biden will do anything to distract from Hunter’s trial and the fact his family has raked in tens of millions of dollars from China, Russia and Ukraine,’ said Jason Miller, a senior adviser to the Trump campaign. ‘The Biden Family Criminal Empire is all coming to an end on November 5th, and never again will a Biden sell government access for personal profit.’ 

Biden currently trails Trump both in national polling and in public opinion surveys in most of the crucial battleground states that will likely decide their election rematch.

The Trump campaign and the Republican National Committee announced Monday they raised a stunning $141 million in May. The announcement came days after Trump and the RNC hauled in nearly $53 million in the first 24 hours after Trump’s guilty verdict.

The Biden campaign is sitting on an $84 million war chest as of April.

Fox News Digital’s Paul Steinhauser contributed to this update.

Former President Trump maintains his slight edge in the latest Fox News Power Rankings, which has Trump at 251 electoral college votes to President Biden’s 241.

The forecast continues to see the race coming down to four toss-up states: Pennsylvania, Wisconsin, Arizona, and Nevada. 

Four other states, including Michigan, Minnesota, Georgia, and North Carolina are also highly competitive.

But there is a change in one state that could prove essential to a Trump victory.

Polling shows a close and steady race

Trump tops Biden by one point in the latest Fox News survey; a result well within the margin of error.

Most high-quality polling since the last forecast is showing the same result: a one or two point lead, either for Biden or Trump, within each poll’s margin of error.

It is too early to tell whether Trump’s conviction in a criminal trial over falsified business records will impact this race, though polling conducted by Marist in the week before the verdict suggests that it will not.

Trump is leading in the battleground states, and especially the closest Sun Belt states (Arizona, Georgia, and Nevada), with mid to high single-digit margins.

The race is closer in the Rust Belt states (Michigan, Pennsylvania, and Wisconsin), where Trump’s leads are usually within one or two points.

Robert F. Kennedy Jr is still a wild card in this race. He received support from 17% of registered voters in a Marquette survey two weeks ago.

He pulls roughly the same amount of support from both sides in most polls, though Republican voters tend to view him more favorably.

Why Trump could win

Trump’s consistent leads are good news for the former president’s campaign.

He is making significant inroads with traditionally Democratic groups; particularly young, Hispanic, and Black voters.

As the new Fox News Power Rankings Issues Tracker reveals today, voters say Trump is the right man to handle the economy and the border, two out of the three leading issues in this election. Voters also say Trump is more mentally and physically fit to take on the job.

Biden has a more modest advantage on abortion policy, and voters say he is more honest than Trump.

Biden’s policy woes are unlikely to go away before November: prices are much higher under his administration, many more illegal immigrants will enter the country, and he will continue to age.

And while Democrats argue that voters are ‘just waking up’ to this election, this is the first rematch in 70 years. Voters are very familiar with these candidates and what they stand for.

Why Biden could win

On election night, the only math that matters is the race to 270 electoral college votes.

In an election with no surprises in other states, Biden can hold on to the presidency by keeping Michigan, Pennsylvania, and Wisconsin.

There are also reasons to think that support for Biden among young and minority voters could strengthen as November approaches.

As Fox News polling analysis recently showed, ‘in April 2020, Biden was at 66% among Blacks and 52% among Hispanics. He ultimately won both groups with much wider percentages, 91% and 63%, respectively, according to the November 2020 Fox News Voter Analysis.’

Close elections also come down to turnout. 

Biden has strong support from college educated voters, who are a very reliable voting group, and he leads on abortion. 

That issue not only rates as a top deal-breaker issue in the latest Fox survey, but is highly likely to feature separately on the ballot in Arizona, which this forecast views as a toss-up state.

Nebraska’s 2nd district could be critical to a Trump victory

Biden can win another four years if he keeps the Rust Belt states and there are no other surprises.

What would a surprise look like? 

The most likely candidate is Nebraska’s 2nd Congressional District.

If Biden keeps Michigan, Pennsylvania and Wisconsin and every other state he won in the 2020 election, the incumbent president will take home 270 electoral college votes. That is the minimum number of votes required to win the election outright.

One of the votes making up that 270 is Nebraska’s 2nd district.

(Maine and Nebraska are the only states that award electoral college votes both to the winner of the statewide vote, and the winner of the same vote but separated by congressional district.)

If Trump wins that district, then it’s a tied race at 269 electoral college votes each. 

Ties are resolved in the U.S. House, where each state gets one vote. If Republicans control the majority of seats in a state, then a Republican member will cast the vote for that state.

Assuming the electoral college votes in line with the results, and Republicans do not suffer massive losses in the House at the next election, and the voter for each Republican-led state supports Trump, then he would be the likely victor in an electoral college tie.

Nebraska’s 2nd district has voted for two Democratic and two Republican presidents in the last four elections:

In 2020, Biden won with 51.95% to Trump’s 45.45%.In 2016, Trump won with 47.16% to Clinton’s 44.92%.In 2012, Romney won with 52.85% to Obama’s 45.70%.In 2008, Obama won with 49.97% to McCain’s 48.75%.

Omaha and its suburbs make up a significant part of the district’s population, and that city has a disproportionately high percentage of people with a college education, making the district the most favorable territory for Biden in a very Republican state.

Both parties are keeping an eye on this part of the state and this forecast expects them to invest heavily in it as November draws closer.

Nebraska’s 2nd district moves from Likely D to Lean D in this forecast.