Philippa Kaur

When Attorney General Merrick Garland appointed veteran prosecutor Jack Smith as special counsel to oversee two criminal investigations into former President Donald Trump on Nov. 18, 2022, Garland’s goal was to shield the probes from the appearance of partisanship.

But in immediate and repeated attacks, Trump, and some of his allies, alleged political bias anyway. For instance, in one highly charged social media post, the former president argued that he won’t “get a fair shake from” Smith.

Fairness and justice, though, are what Garland appointed Smith to deliver. In his announcement that Smith would take charge of the Department of Justice investigations into Trump’s role in the Jan. 6 insurrection and Trump’s handling of classified government documents, Garland described Smith as someone who “has built a reputation as an impartial and determined prosecutor.”

In his own statement, Smith, who most recently investigated and prosecuted war crimes at the International Criminal Court in The Hague, promised to “independently … move the investigations forward … to whatever outcome the facts and the law dictate.”

From my perspective as a political scientist who studies presidential systems, I believe that while special counsels are intended to be independent – in practice, they are aren’t entirely. Here’s why.

Newly appointed Special Counsel Jack Smith, when he was prosecutor at the Kosovo Specialist Chambers court in The Hague, Nov. 10, 2020.
AP Photo/Peter Dejong, Pool

Independent and special counsels

Ensuring impartiality in the Department of Justice can be difficult, as the attorney general is appointed by – and answerable to – a partisan president. This gives presidents the power to try to compel attorneys general, who head the department, to pursue a political agenda. President Richard Nixon did this during the investigation of the Watergate break-in, which threatened to implicate him in criminal acts.

On the evening of Oct. 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Archibald Cox, whom Richardson had appointed to lead the Watergate investigation. Richardson refused and resigned. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused and resigned. Finally, Nixon ordered Solicitor General Robert Bork, the next most senior official at the Department of Justice, to fire Cox. Bork complied.

This shocking series of events, often referred to as the Saturday Night Massacre, demonstrated how presidents could exercise political power over criminal investigations.

As a result of the Watergate scandal, Congress passed the Ethics in Government Act of 1978. This allowed for investigations into misconduct that could operate outside of presidential control.

After passage of this legislation, if the attorney general received “specific information” alleging that the president, vice president or other high-ranking executive branch officials had committed a serious federal offense, the attorney general would ask a special three-judge panel to appoint an independent counsel, which would investigate.

The Ethics in Government Act also disqualified Department of Justice employees, including the attorney general, from participating in any investigation or prosecution that could “result in a personal, financial, or political conflict of interest, or the appearance thereof.”

In the decades since the law’s passage, independent counsels investigated Republicans and Democrats alike. In 1999, Congress let the Ethics in Government Act expire. That year, then-Attorney General Janet Reno authorized the appointment of special counsels, who could investigate certain sensitive matters, similar to the way independent counsels operated.

Robert Mueller, who was appointed in 2017 by Deputy Attorney General Rod Rosenstein to investigate possible Russian interference in the 2016 elections and possible links between the Trump campaign and the Russian government, was a special counsel. Some Republicans accused him of bias, despite his long career serving under both Democratic and Republican presidents.

In 2020, John Durham – another veteran of the Department of Justice – was appointed as special counsel to investigate the origins of the investigation that triggered Mueller’s appointment. Michael Sussmann, a former Democratic Party lawyer and target of that probe, accused Durham of political prosecution. Sussmann was later acquitted.

Politicizing the process

Although special counsels were meant to resemble independent counsels, there are notable differences.

For instance, while special counsels operate independently of the attorney general, both their appointment and the scope of their investigations are determined by the attorney general. In contrast, the appointment of independent counsels and the scope of their investigations were determined by a three-judge panel, which in turn was appointed by the chief justice of the United States.

Also, since Congress authorized independent counsels, presidential influence was limited by law. In contrast, since Department of Justice regulations authorize special counsels, a president could try to compel the attorney general to change departmental interpretation of these regulations – or even just revoke them entirely – to influence or end a special counsel investigation.

For example, at one point, Trump wanted to fire Mueller. After his attorney general, Jeff Sessions, who had recused himself from the Russia probe, did not “end the phony Russia Witch Hunt,” Trump fired him.

Seemingly supportive of this, William Barr, who had served as attorney general under President George W. Bush, sent an unsolicited memo to the Department of Justice defending Trump by arguing that presidents have “complete authority to start or stop a law enforcement proceeding.”

Unsurprisingly, Trump then chose Barr to replace Sessions as attorney general.

In my own research, I have found that abuses of power are more common in situations in which the president and the attorney general are political allies.

For instance, after Mueller finished his report in 2019, Barr released a summary of its “principal conclusions.” Later, Barr’s summary was criticized for “not fully captur[ing] the context, nature, and substance of” Mueller’s work.

In 2020, a Republican-appointed judge ruled that Barr “failed to provide a thorough representation of the findings set forth in the Mueller Report” and questioned whether Barr had “made a calculated attempt to influence public discourse … in favor of President Trump.”

To be or not to be free of partisanship

The independence of the Department of Justice rests, in part, on who occupies the offices of president and attorney general.

Trump, for example, saw himself as “the chief law enforcement officer of the country” and thought it was appropriate to “be totally involved.”

Meanwhile, President Joe Biden has a long history of supporting the independence of Department of Justice investigations, dating as far back as his 1987-1995 tenure as chairman of the Senate Judiciary Committee.

Barr once argued that the attorney general’s role is to advance “all colorable arguments that can [be] mustered … when the president determines an action is within his authority – even if that conclusion is debatable.”

In contrast, Garland – a former U.S. circuit judge – insists that “political or other improper considerations must play no role in any investigative or prosecutorial decisions.”

Given that Trump and Biden may end up facing off in 2024, it makes sense that Garland would want to appoint a special counsel in order to avoid directly overseeing any investigations into a political opponent of the president under whom he serves.

Still, Smith will not be entirely independent of Garland, just as Garland is not entirely independent of Biden. More

The November 2022 midterms have come and gone, but there are still some potential lasting implications that could influence the next election season.

One is that young people, aged 18 to 29, had one of the highest voter turnouts in a midterm election in recent history, according to our early analysis.

Specifically, an estimated 27% of eligible voters in that age group turned out to the polls in 2022, according to research by my team at CIRCLE – a research group at Tufts University focused on youth civic engagement. This marks only the second time in the last 30 years that more than 1 in 4 voters under 30 voted in a midterm cycle. In 2018, approximately 31% of young people voted.

It was young people’s support for Democratic candidates, specifically, that led them to have a major impact on elections in key states this year. Their votes were influential or outright decisive in several close races won by Democrats, such as Nevada’s senate election. The same was true in the Georgia senate and Arizona gubernatorial races.

Voter turnout across all age groups tends to be significantly lower in midterm elections than in presidential elections.

Young people, though, have historically voted at even lower rates than older adults in general. This trend has begun to change, with double-digit increases in youth turnout between 2014 and 2018 and between 2016 and 2020.

As a scholar of young people’s participation in democracy, I think the youth vote in 2022 underscores much of what works to increase young people’s electoral participation.

More registration, more votes

For starters, there was higher youth voter registration in 2022 than in 2018 in many states, including Michigan, Nevada and Kansas. Young political and civic leaders and voters also connected to issues that affect their lives – like abortion rights – in this election.

These trends also highlight what could help lessen ongoing challenges to get more young people to vote. There are voting laws, for example, that make it easier to register and vote.

Young people typically are less likely than older people to vote in both presidential and midterm elections.
Aaron Jackendoff/SOPA Images/LightRocket via Getty Images

What happened in November 2022

The overall 27% youth turnout rate is only one part of the story.

This was the 10th election cycle in a row in which 18- to 29-year-olds supported Democratic House candidates by at least a 10-point margin, according to CIRCLE’s analysis of the Edison Research data.

This year, young voters preferred Democratic House candidates by a 28-point margin. Youth of color, young women and LGBTQ youth supported Democrats by an even wider margin.

Young voters’ preference at the polls was markedly different from that of other age groups. Nationally, voters ages 30 to 44 preferred House Democrats by only 4 percentage points, and voters over the age of 65 preferred House Republicans by more than 10 points.

Why did it happen

Many reporters have asked me and my colleagues who contributed to this article – including Alberto Medina, CIRCLE’s communications team lead, and Ruby Belle Booth, CIRCLE’s elections coordinator – why youth voter turnout dropped in 2022 below the 2018 levels.

Throughout 2022, there were some signs that youth participation in the midterms would be relatively strong, including the number of young people already registered to vote. However, in that same analysis, my colleagues and I found that voter registration among 18- and 19-year-olds was lagging compared to 2018.

Supporting these young people to vote remains an enduring challenge.

Many campaigns and organizations rely on the existing voter rolls and other lists of registered voters to conduct outreach, so they often miss these potential new voters. That’s compounded by another issue: Young people are less inclined than other voters to identify or register with a political party.

Politics is personal

Instead, many young people approach politics based on the issues they care about.

In 2018, for example, the Parkland, Florida, school shooting, which killed 17 people, led more young people to vote for candidates they felt would do more to curb gun violence.

A number of high-profile climate change protests in 2020 also appeared to boost youth voter turnout that year.

In 2020, many young voters focused on racial justice and the Black Lives Matter movement, following the May 2020 police killing of George Floyd, a 46-year-old Black man. That spurred considerable political engagement, like participating in public protests, that connected to a major increase in youth voter turnout between 2016 and 2020.

In 2022, young people continued to push for change on issues they consider personal, like climate change, gun violence and racial justice.

And after the Supreme Court’s reversal of Roe v. Wade in June 2022, abortion rose to the top of young people’s issues of concern.

While nearly 3 in 4 young people said they favor legal abortion, both young people who are for and against abortion rights said this was a top issue for them.

Our analysis of exit poll data found that young voters were the only age group to cite abortion as their top reason for voting. Other groups of voters over 30 said that inflation was their top priority.

Voter turnout among young people has historically been low, in both midterm and presidential elections.
John Moore/Getty Images

Implications for 2024 and beyond

Millions more young people born after 1996 will reach voting age by 2024. Their political power will only grow in the years to come, while those over the age of 65 will make up a declining share of the population and the electorate.

What that shift means for election results will depend on how political parties and other political and civic groups engage young people.

In recent years, most young people have voted for Democrats. This is a shift from just 20 years ago, when voters under 30 split their vote fairly evenly between Democrat and Republican candidates.

But Republicans lag behind Democrats when it comes to directly communicating with young people. Just less than 1 in 3 people aged 18 to 29 said they heard from the Republican Party or the Donald Trump campaign in the month before Election Day in 2020. Half of young people, conversely, said they heard from the Democratic Party or Joe Biden’s campaign.

There are other actions and policies that could get more people under 30 to the polls.

Preregistration, which allows young people to register to vote at age 16 so they’re ready to cast a ballot once they turn 18, can increase youth turnout, but it’s only available in 16 states. Other policies and efforts by election administrators to get more young people to vote can vary widely across states, leading to major differences in participation. In 2020, youth turnout varied from 32% in South Dakota to 67% in New Jersey.

Young people’s estimated 27% turnout rate in 2022 marks a near-record for an age group that has historically participated at lower rates in midterm elections. Whether this is a long-term trend or not will depend on whether communities and political groups implement the changes that research suggests can lead to sustained increases in youth voter turnout. More