Jack Smith’s Lawyers Slam Hatch Act Probe as ‘Baseless and Political’
The legal battle surrounding former President Donald Trump has taken another sharp turn as Jack Smith, the former special counsel who prosecuted Trump, faces scrutiny of his own. Smith’s attorneys are now pushing back hard against an investigation by the U.S. Office of Special Counsel (OSC), calling it “imaginary and unfounded.” The inquiry stems from a complaint filed by Senator Tom Cotton (R-Ark.), who alleges that Smith improperly attempted to influence the 2024 election through his legal actions against Trump.
Smith’s attorneys, from the prominent law firm Covington & Burling, argue that the Hatch Act probe is politically motivated and based on false premises. Their strongly worded response raises questions not only about the limits of the Hatch Act but also about how political pressure intersects with prosecutorial independence in high-profile cases.
What Sparked the Hatch Act Probe?
The Office of Special Counsel (OSC), an independent federal watchdog agency, investigates complaints related to federal whistleblowers and violations of the Hatch Act. The Hatch Act bars federal employees from engaging in political campaign activity while performing their official duties.
The controversy began after Sen. Tom Cotton sent a letter demanding that the OSC investigate Smith’s prosecution strategies. Cotton argued that many of Smith’s legal actions — such as motions to expedite court proceedings — appeared designed to impact the timing of the 2024 presidential election. He suggested that this amounted to unlawful interference in the political process.
Following Cotton’s complaint, the OSC confirmed it had opened an investigation into whether Smith’s conduct as special counsel crossed the line into prohibited political activity.
Smith’s Lawyers Fire Back
In a letter obtained by Fox News, Smith’s attorneys dismissed the probe as baseless and partisan. They argued that Smith’s decisions were consistent with the responsibilities of any prosecutor: to pursue facts and apply the law impartially, without regard to political consequences.
“Mr. Smith’s actions as Special Counsel were consistent with the decisions of a prosecutor who has devoted his career to following the facts and the law, without fear or favor and without regard for the political consequences, not because of them,” the attorneys wrote.
They stressed that Smith merely requested courts to speed up legal proceedings and sought permission to file extended briefs — actions they described as “unremarkable” and well within the bounds of prosecutorial discretion. Importantly, every action Smith took required approval from judges, which undermines the argument that he acted unilaterally to sway an election.
His lawyers further warned that the OSC investigation itself could undermine confidence in the justice system if it appears to be catering to partisan complaints. “This investigation is premised on a partisan complaint that suggests the ordinary operation of the criminal justice system should be disrupted by the whims of a political contest,” they wrote.
The Bigger Picture: Trump Cases and Political Tensions
Jack Smith played a central role in two major prosecutions of Donald Trump during the Biden administration:
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The Espionage Act case – alleging Trump mishandled classified national defense information.
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The 2020 election interference case – accusing Trump of trying to subvert the election results.
Both cases were dropped after Trump won the 2024 presidential election, in line with long-standing Department of Justice policy that sitting presidents cannot be criminally prosecuted. Still, Smith’s aggressive pursuit of the cases has made him a lightning rod for criticism from Trump allies, who argue that he overstepped his authority for political gain.
Sen. Cotton’s complaint and the OSC’s decision to open an investigation fit into a broader political narrative: Republicans claim Trump was unfairly targeted by federal prosecutors, while Democrats argue the prosecutions reflected accountability for serious crimes.
The Hatch Act investigation could further inflame tensions, especially since it focuses not on Trump but on the integrity of those who prosecuted him.
What Happens Next?
The OSC has the power to impose administrative punishments, including fines or barring individuals from future federal employment, if it finds a violation of the Hatch Act. However, it cannot bring criminal charges.
Smith’s attorneys have urged acting OSC head Jamieson Greer to consult them before moving forward, warning that the probe risks being tainted by partisan politics. They insist the record shows Smith acted properly and in accordance with DOJ standards.
The case also highlights the blurred line between law and politics in today’s polarized climate. While prosecutors must act independently, their decisions in politically charged cases inevitably attract scrutiny and accusations of bias.
For now, the OSC investigation keeps Smith in the political spotlight, even after he stepped down as special counsel. It also underscores the enduring ripple effects of Trump’s prosecutions and the battles over how justice and politics should — or shouldn’t — intersect in the United States.
