The U.S. Office of Special Counsel, an independent federal agency, has initiated an investigation into former Special Counsel Jack Smith. This probe centers on whether Mr. Smith violated the Hatch Act through his criminal investigations into President Donald Trump. The Office of Special Counsel confirmed this development on Saturday, following initial reports. This action marks a significant turn in the ongoing scrutiny surrounding the legal pursuits against the former president.
The investigation by the OSC stems directly from a referral made earlier this week by Republican Sen. Tom Cotton of Arkansas. Senator Cotton formally requested the independent agency to scrutinize Mr. Smith’s investigative and prosecutorial activities. His concern was rooted in the belief that these actions, undertaken prior to the 2024 election, were intended to harm President Trump’s political prospects.
Senator Cotton voiced strong disapproval, stating, “Jack Smith’s legal actions were nothing more than a tool for the Biden and Harris campaigns,” further characterizing the conduct as “very likely illegal campaign activity from a public office,” which led to this inquiry.
Adding to his allegations, Senator Cotton claimed that Mr. Smith had pressed for a “rushed trial” of President Trump. The Arkansas Republican viewed these actions as those “of a political actor masquerading as a public official.” Senator Cotton conveyed his stance on social media platform X, stating, “That’s why I’ve asked this unprecedented interference in the 2024 election be immediately investigated by OSC.”
Appointed as special counsel by then-Attorney General Merrick Garland in November 2022, just three days after Trump announced his presidential candidacy, Mr. Smith was tasked with overseeing federal investigations into the former president.
During his tenure, Mr. Smith initiated two major criminal cases against Mr. Trump, one alleging the illegal retention of classified materials at his Mar-a-Lago estate, aiming to address the alleged mishandling of sensitive government documents.
The second case brought by Mr. Smith accused President Trump of conspiring to overturn the 2020 election results, an effort that ultimately led to the January 6, 2021, attack on the U.S. Capitol, with both prosecutions drawing significant national attention.
Both of these criminal cases were filed in 2023, well over a year before the 2024 presidential election, with indictments citing what Mr. Smith and his team termed “clear violations of well-established federal law,” forming the basis of the government’s arguments.
Despite the allegations, Mr. Trump pleaded not guilty and consistently denied all wrongdoing in both legal proceedings. Both Mr. Smith and former Attorney General Garland had repeatedly maintained, prior to Mr. Smith departing office, that “none of the actions taken in either the classified documents investigation or the probe of Trump’s efforts to subvert his 2020 election loss were driven by politics.” Mr. Garland had also repeatedly affirmed that “politics played no part in the handling of the cases.
Mr. Smith’s investigation into President Trump, spanning two years, was historically significant as it marked the first time a former White House occupant faced federal criminal charges, highlighting the unprecedented nature of these legal proceedings.
However, neither case proceeded to trial, having been delayed and buffeted by a series of legal challenges. Following President Trump’s victory in the November 2024 election, both cases were abandoned by Mr. Smith. He cited a “longstanding Department of Justice policy prohibiting the prosecution of a sitting president” as the reason for this decision. Mr. Smith resigned from his position in January, just days before President Trump’s return to office.
Even though the cases are now closed, Mr. Smith released a report in January asserting that the gathered evidence would have been sufficient to secure a conviction against President Trump at trial, adding another layer to this ongoing legal narrative.
To truly grasp the current investigation, it’s essential to understand the Office of Special Counsel (OSC), an independent federal agency that operates separately from the special counsel role Mr. Smith previously held within the Justice Department.
It is crucial to understand that the OSC does not possess the authority to investigate criminal matters. Instead, its primary function involves assisting government whistleblowers in reporting allegations of waste or wrongdoing within federal agencies. A core aspect of its mandate is also the enforcement of the Hatch Act, the federal law at the center of the current inquiry.
The Hatch Act is a federal law that places restrictions on government employees from engaging in partisan political activities. Its purpose is to limit certain political activities of federal employees. The law is designed to prevent the federal government from affecting elections or conducting its activities in a partisan manner. According to the OSC’s own explanation of the rule, it extends its application to federal employees as well as state and local employees who work with federally funded programs.
Violating the Hatch Act is classified as a workplace guideline transgression, not a criminal offense. This distinction means that penalties for a breach differ from those for criminal charges. The rule is focused on maintaining political neutrality within the federal workforce.
While the OSC doesn’t have the power to prosecute criminal cases, it can impose fines and other penalties for Hatch Act violations, with sanctions for federal employees ranging widely from minor reprimands to dismissal from public service.
The agency also has the option to forward its findings on Hatch Act violations to the Department of Justice for further review, though it’s worth noting that “Hatch Act violations are not typically referred to the Department of Justice,” emphasizing the OSC’s role outside of criminal prosecution.
