'It's a very substantial argument,' Andy McCarthy says of Jack Smith's 'unlawful' appointment

While former President Donald Trump is trying to get this case tossed out, former Assistant U.S. Attorney Andy McCarthy says "it's a very substantial argument" that special Counsel Jack Smith was unlawfully appointed by Merrick Garland in 2022, pointing to an "appointments clause, which is the constitutional provision that controls appointments of this kind."

McCarthy said there are two primary requirements for the clause to be employed, first that the position must be established by law, with Congress setting forth the qualifications and often requiring Senate's passage. Secondly, for major offices known as principal officers in the U.S., nomination by the president and confirmation by the Senate are mandatory. 

The prosecution contends that Attorney General Merrick Garland indisputably holds the authority, backed by precedent, to oversee the special counsel. They argue that oversight in this case falls squarely under the Attorney General's purview.

"Attorney General Garland has said from the beginning that he doesn't supervise Jack Smith," McCarthy said. "The whole point of appointing Smith was to try to create some distance between President Biden and the Biden administration, including the Biden Justice Department, and the prosecutions of Trump. I've always thought that was a fiction, but the fact of the matter is the Attorney General has said he's not doing the very thing that the special counsel now says he is doing, which is overseeing Smith."