Inset: Jack Smith speaks about an indictment of former President Donald Trump, Aug. 1, 2023, at a Department of Justice office in Washington (AP Photo/Jacquelyn Martin, File). Background: President Donald Trump speaks with reporters in the Oval Office at the White House, Tuesday, Feb. 11, 2025, in Washington, D.C. (Photo/Alex Brandon).
President Donald Trump has long been clear about how he feels about the man who prosecuted him, calling Jack Smith a “scoundrel,” “dishonest,” “mean,” “deranged,” and a “left-wing radical,” even at times mentioning the former special counsel in the same breath as he hoped for the jailings of political opponents.
And it was not long ago that some wondered if Smith would receive a preemptive pardon from then-President Joe Biden, in anticipation of a potential Trump political revenge project. It now appears that retaliation is underway in the form of an ethics complaint, on the strength of a federal law that members of the first Trump administration openly disregarded: the Hatch Act.
Sen. Tom Cotton, R-Ark., last week submitted a letter to Jamieson Greer, a Trump utility man serving as acting special counsel at the Office of Special Counsel (OSC) — not to be confused with the Special Counsel”s Office formerly helmed by Smith at U.S. Attorney General Merrick Garland’s command — demanding an investigation of Smith for violating 5 U.S. Code § 7323, a statute under the Hatch Act.
Reports say that the OSC has now opened investigation in response.
As numerous stories on potential and substantiated Hatch Act violations from Trump’s first term — such as alleged “repeat offender” Kellyanne Conway, whom Trump refused to fire — and from Biden’s lone term pointed out, the federal law “limits certain political activities of federal employees,” like campaigning for a particular candidate while on the job, in order to “ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation.”
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The statute Cotton applies to Smith says that a covered federal employee may not “use his official authority or influence for the purpose of interfering with or affecting the result of an election” and “[n]o employee of the Criminal Division or National Security Division of the Department of Justice (except one appointed by the President, by and with the advice and consent of the Senate), may take an active part in political management or political campaigns.”
In his letter, Cotton said that an investigation was needed to determine if Smith “unlawfully took political actions to influence the 2024 election to harm then-candidate President Donald Trump,” claiming that “many” of the then-special counsel’s “legal actions seem to have no rationale” beyond naked politics.
Cotton then provided four examples that he said supported that conclusion: Smith tried to prosecute Trump before the 2024 election and that was too quick, since the federal Mar-a-Lago and Jan. 6 indictments did not come down until the summer of 2023; Smith sought certiorari before judgment at the Supreme Court on Trump’s immunity claims in a failed bid to fast-track the Jan. 6 case; after SCOTUS ruled that Trump’s — and any president’s — official acts are entitled to presumptive immunity, Smith was undeterred by campaign season and followed SCOTUS’ order to purge his allegations of official acts evidence by filing an immunity brief; and, according to Cotton, that filing was much too long, even though a judge allowed the “oversized” brief and was unconcerned with the nearness of the election.
In addition, Cotton complained that Smith’s timeline, capped off by the immunity brief, “appears to violate the Justice Department’s” unwritten “60-day rule, which prohibits timing any action, for the purpose of affecting any election or giving advantage or disadvantage to a candidate, within 60 days of the election.”
That is a rehashing of an argument Trump’s lawyers made, without success, in court and in the view of former federal prosecutors, given how the “60-day rule” — a “not binding or legally enforceable” voluntary DOJ guideline — is applied.
Taken together, Cotton’s complaint is that Trump was aggressively prosecuted up to, through, and without regard for the 2024 election, a fact that he insisted can only be explained by Smith’s political motivations.
“These actions were not standard, necessary, or justified-unless Smith’s real purpose was to influence the election,” the letter concluded. “In fact, throughout Special Counsel Smith’s tenure, he regularly used farfetched and aggressive legal theories to prosecute the Republican nominee for president.”
What will the investigation lead to for Smith if it goes as Cotton hopes?
Though there are criminal provisions in the Hatch Act which Cotton’s letter did not cite, OSC notes that civil violations of the Hatch Act can result in “removal from federal service, reduction in grade, debarment from federal service for a period not to exceed 5 years, suspension, letter of reprimand, or a civil penalty not to exceed $1,000.”
