A significant development has emerged from Washington, D.C., as the Office of Special Counsel (OSC) has officially launched an investigation into former special counsel Jack Smith, focusing on potential violations of the Hatch Act. This probe casts a new light on the conduct of a key figure who previously led high-stakes criminal investigations into former President Donald Trump concerning classified documents and alleged efforts to subvert the 2020 election, placing Jack Smith under intense scrutiny regarding his adherence to federal ethics guidelines.
The timing of this DOJ investigation is notable, coinciding with a period where former President Trump and his allies have actively sought retribution against those involved in probes against him. The Hatch Act, a federal law limiting certain political activities of federal employees, is at the heart of the inquiry, raising questions about the boundaries of political neutrality for those in public service, especially in politically charged environments.
It is crucial to distinguish the Office of Special Counsel from the special counsels like Smith. The OSC is an independent government agency established by Congress, designed to protect federal employees from prohibited personnel practices and ensure adherence to merit system principles, including the Hatch Act. Currently, the OSC is overseen by an acting head appointed by President Trump, following the dismissal of the previous Biden-appointed chief, which has led to concerns about the agency’s perceived impartiality.
The Hatch Act itself is not a criminal statute but a workplace guideline, with consequences for violations varying significantly from a reprimand to job termination. Precedents exist, such as a 2021 report finding 13 Trump administration officials violated the act, including Kellyanne Conway, who was previously recommended for removal. More recently, President Biden’s press secretary, Karine Jean-Pierre, also faced scrutiny for a violation in 2023, underscoring the broad applicability and varied enforcement of this government ethics rule.
While Jack Smith is no longer a federal employee, having departed the Justice Department earlier this year after concluding his cases following Trump’s 2024 election victory, the investigation into his past conduct during his tenure continues. His two-year investigation into Trump was historic, marking the first instance a former U.S. President faced federal criminal charges, making this current political probe into Smith’s actions particularly resonant.
Trump and his supporters fiercely opposed Smith’s probes, often characterizing them as a weaponization of the federal government. Senator Tom Cotton, a Trump ally, specifically alleged that “Smith used his DOJ role to influence the election” in favor of the Biden-Harris campaigns. This assertion points to a separate Justice Department rule concerning filings within 60 days of an election, potentially going beyond the scope of the Hatch Act itself and complicating the Special Counsel narrative.
Ethics experts are weighing in on the complexities of the situation. Richard Painter, a former top ethics lawyer in the George W. Bush administration, expressed skepticism regarding a prosecutor being found in violation of the Hatch Act merely for court pleadings. He emphasized that active public announcements close to an election would be more problematic, suggesting that Smith’s continued court filings for a long-pending case might not constitute a violation under typical interpretations of the act.
Painter, now a law professor, also voiced concerns regarding the independence of the OSC under the current administration, especially given recent leadership changes. Reports suggest insiders and independent watchdogs are alarmed, claiming the historically nonpartisan agency has been “captured” by loyalists to the very administration it is supposed to oversee, further clouding the impartiality of this Hatch Act inquiry.
Ultimately, the specific details of what the Office of Special Counsel is investigating as a potential Hatch Act violation remain unclear, adding a layer of ambiguity to an already politically charged situation. The outcome of this investigation will undoubtedly have significant implications for the perception of accountability and ethical conduct within federal government and the broader Trump administration context.
