Holzer is an Assistant Professor of Political Science at Westminster College.
Attorney General Merrick Garland has now appointed two veteran prosecutors as special counsels to oversee investigations into how President Joe Biden and former President Donald Trump handled classified documents after leaving office – Biden after he ended his terms as vice president in 2017, and Trump after leaving the Oval Office in 2021.
Robert Hur, a former federal prosecutor in Maryland, will investigate whether Biden or any of his staff or associates mishandled classified information. Jack Smith, a longtime top investigator in the Department of Justice, is overseeing two criminal investigations into former President Donald Trump.
Garland’s goal, in both cases, is 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.
Biden, for his part, has said he is “ cooperating fully and completely ” with the Justice Department’s inquiries.
Fairness and justice, though, are what Garland appointed Smith and Hur 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.”
When appointing Hur, Garland emphasized his “ department’s commitment to both independence and accountability in particularly sensitive matters and to making decisions indisputably guided only by the facts and the law.”
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.
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, who 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, 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 special counsels in order to avoid directly overseeing investigations into his boss and into a political opponent of his boss.
Still, Smith and Hur will not be entirely independent of Garland, just as Garland is not entirely independent of Biden.
This article originally appeared in The Conversation.
A golden tray sits on the Resolute Desk as President Donald Trump speaks during an announcement on American nuclear innovation in the Oval Office at the White House on July 24, 2026, in Washington, D.C. Trump is signing multiple executive orders targeting the nuclear energy sector and easing rules for new reactors and nuclear fuel supply chains.
Trump’s hubris rivals the fallen heroes of ancient Greek mythology
In January, the New York Times asked President Donald Trump if there were any limits on his global powers.
“Yeah,” the president responded, “there is one thing. My own morality. My own mind. It’s the only thing that can stop me.”
That was eight months ago, but fortunately Christopher Nolan’s blockbuster adaptation of “The Odyssey” has made ancient Greek literature newly relevant. Before that window closes, I’d like to talk about hubris.
Today, the term mostly means excessive pride or arrogance. That’s part of what the Greeks meant by it too, but the meaning was a bit richer and more specific. Hubris was an insolent or outrageous act that offended the gods, often because the transgressor was claiming abilities or authorities that solely belonged to supreme beings.
Nolan renamed and slightly modified the concept of xenia for the film, calling it “Zeus’ law.” In the director’s telling, mortals should follow the rules laid out by the gods, specifically the requirement to treat strangers with respect lest they be gods in disguise.
In a sense, hubris is the opposite, or at least the rejection, of xenia. The hubris of the suitors, and at times Odysseus himself, invites punishment by the gods and their mortal instruments.
Which brings me back to Donald Trump. His claim that there are no constraints on his personal power to dictate events on the global stage was one of the greatest expressions of hubris ever uttered by a political leader.
Trump’s claim was obviously false when he made it.
He vowed that he could end the Russia-Ukraine war in 24 hours. He’s proved powerless to make that happen. If he had divine powers to work his will, why would he have balked at implementing his tariffs so often that Wall Street adopted the “TACO trade” term for his deals? “TACO” stands for “Trump always chickens out.”
And why would Trump have made so many embarrassing concessions to China — from rescinding tariffs on Chinese goods to allowing them to buy crucial and incredibly valuable computer chips?
But Trump saw his success at capturing Venezuelan strongman Nicolas Maduro as proof of his ability to launch missiles to the same effect as Zeus’ lightning bolts. Trump believed he was the most powerful man who ever lived.
This is no exaggeration. In March, when the Iran invasion seemed successful, Trump gave a document penned by“Presidential Historian David King” to New York Times reporters Maggie Haberman and Jonathan Swan purporting to prove that Trump was “the most powerful person to have EVER walked this planet.” King was, in fact, a businessman and occasional caddy for legendary golfer Gary Player.
King compared Trump favorably to many of history’s most powerful, and often heinous, figures: Alexander the Great, Attila the Hun, William the Conqueror, Napoleon Bonaparte, Joseph Stalin, Genghis Khan, Mao Tse Tung, Adolf Hitler and Vladimir Lenin. Many of these men thought they were the most powerful person in the world, too. And many were defeated precisely because they believed it.
At least Napoleon and Hitler had a string of truly impressive victories before they learned the folly of hubris. The limits on Trump’s power have been exposed by far less august forces than the combined might of the allies in World War II or the fearsome Russian winter.
Iran is a comparatively middling power. But the regime’s ability to absorb punishment while imposing its will on the Strait of Hormuz has proved to be a greater constraint on Trump’s power than his morality or mind. We should note that, at least rhetorically, his morality has not proved much of a constraint. He has repeatedly promised to destroy Iranian “civilization” if the regime refuses to capitulate.
But they haven’t — and won’t anytime soon — because the regime’s tolerance for pain far outstrips Trump’s. The combined fear of skyrocketing oil prices, outrage of Gulf state potentates, diminishing weapon supplies and domestic unpopularity is doing the work that international law, congressional oversight and the collective opinion of foreign policy experts can’t or won’t do.
If I considered Trump more heroic than reason and facts could allow, I would say his Sisyphean predicament has the whiff of Greek tragedy to it. Trump is vexed by the fact that the Iranians won’t honor deals or ratify his countless premature claims of victory — giving new meaning to his vow that his presidency would make people tired of winning. It’s almost like they’re out-Trumping Trump.
Things might have gone better if he’d heeded that great Greek tragedian Sophocles: “For Zeus utterly abhors the boasts of a proud tongue.”
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Jonah Goldberg is editor-in-chief of The Dispatch and the host of The Remnant podcast. His Twitter handle is @JonahDispatch.