November 18, 2022
Attorney General Merrick Garland appointed Jack Smith as Special Counsel on November 18, 2022, three days after Trump announced his 2024 presidential campaign, using a 1999 regulation that gives special counsels investigative independence but keeps them answerable to the Attorney General.
Garland appointed Smith on November 18, 2022 — three days after Trump announced his 2024 presidential campaign
Smith operated under 28 CFR Part 600, regulations created in 1999 after Congress let the independent counsel statute expire
28 CFR 600.6 gives special counsels full investigative and prosecutorial authority of a U.S. Attorney within their jurisdiction
28 CFR 600.7 allows the Attorney General to remove a special counsel for cause — making them less independent than old-law independent counsels like Ken Starr
Smith previously served as chief prosecutor for the Special Court for Kosovo at The Hague, investigating war crimes
Trump's legal team argued Smith needed Senate confirmation as a 'principal officer' under the Appointments Clause
U.S. Attorney General
Special Counsel
Historical reference — Independent Counsel (1994-2002)
Historical reference — Special Counsel (2017-2019)
U.S. District Judge, Southern District of Florida
research
Read the special counsel regulations in full
The regulations governing special counsels are public law, not secret policy. Reading them directly lets citizens cut through political spin and evaluate independence claims with real knowledge.
Read the special counsel regulations in full at eCFR.gov — the rules that govern who investigates presidents are publicly available at 28 CFR Part 600. Go to ecfr.gov and search for Part 600. Read each section, especially the provisions on appointment, jurisdiction, and removal. Understanding these rules helps citizens evaluate claims about whether any given investigation is truly independent.
research
Compare pre-1999 independent counsel statute to current special counsel regulation
The shift from statutory independent counsel to regulatory special counsel in 1999 fundamentally changed who controls major presidential investigations. Understanding that history explains why the Smith appointments survived under Garland but faced challenge under Trump.
Special counsels under 28 CFR Part 600 are not fully independent — they answer to the Attorney General, who can remove them for cause. Congress let the independent counsel statute (the Ethics in Government Act) expire in 1999 and handed that oversight power back to the executive branch. To understand what changed, compare the 1994 independent counsel statute at govinfo.gov with today's regulations at eCFR. The key difference: a statute is harder to override than a regulation because it requires an act of Congress to change.
civic action
Contact your senators about restoring statutory independence for special counsels
Citizens who contact their senators on specific, concrete questions — rather than general complaints — are more likely to get substantive responses and to move legislative action.
The difference between an independent counsel (pre-1999 statute) and a special counsel (current regulation) matters in practice: statutes are harder to override than regulations. Contact both of your senators through senate.gov and ask specifically: Do you support legislation to restore a statutory independent counsel mechanism that cannot be overridden by executive regulation? Ask their staff to put your question in writing and request a response. Keep a record of the response.