Attorneys representing former special counsel Jack Smith hit back Tuesday at reports of a recently announced watchdog investigation into his prosecutions of President Donald Trump, describing the reasoning for the probe as baseless and partisan.
“The predicate for this investigation is imaginary and unfounded,” said Covington and Burling attorneys Lanny Breuer and Peter Koski in their letter to acting Office of Special Counsel Jamieson Greer, which was obtained by ABC News.
The Office of Special Counsel — which is a separate watchdog agency from the special counsel position Smith held under the auspices of the Justice Department — confirmed late last month it was investigating Smith after receiving a referral from Republican Sen. Tom Cotton.
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Cotton’s complaint accused Smith of taking deliberate steps in his prosecutions of Trump, which included charges for unlawful retention of classified materials as well as a criminal conspiracy to overturn his 2020 election loss, to impact Trump’s 2024 presidential campaign in violation of the Hatch Act.
“A review of the record and procedural history demonstrates the opposite — Mr. Smith was fiercely committed to making prosecutorial decisions based solely on the evidence, he steadfastly followed applicable Department of Justice guidelines and the Principles of Federal Prosecution, and he did not let the pending election influence his investigative or prosecutorial decision-making,” Smith’s attorneys wrote in response to the complaint.
Both cases were dropped after Trump was reelected president due to a long-standing Justice Department policy that bars the prosecution of a sitting president.
Tuesday’s letter notes that since Greer’s announcement of his office’s ethics investigation of Smith, he has not yet attempted to directly contact Smith for cooperation with the probe.
Smith’s attorneys also note the unusual nature of the investigation being led by OSC, which traditionally has no role in probing the actions of federal prosecutors.
“We are aware of no court decision, prior Office of Special Counsel finding, or other authority interpreting the Hatch Act to prohibit prosecutors from investigating allegations of criminal conduct committed by former public officials or candidates for public office, or prosecuting those cases when the facts and law so dictate,” the letter stated.
“Application of such an unprecedented interpretation of the statute risks interfering with the Department of Justice’s ability to investigate and prosecute public officials or candidates for public office,” the letter said.
The New York Times was the first to report on the letter.
A representative of the Office of Special Counsel did not immediately respond to a request for comment from ABC News.
Tuesday’s letter is the first public comment from Smith’s attorneys since he moved to drop his two prosecutions of Trump following the 2024 election — and comes amid a growing barrage of comments from the White House urging investigations of Trump’s perceived political enemies.
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The Justice Department has already named Smith as among the officials under scrutiny by its “Weaponization Working Group,” though it’s unclear whether that means he is facing any criminal investigation.
In their letter to Greer Tuesday, Smith’s attorneys urged the OSC to ensure they have input before the release of any finding or report on Smith’s actions, which they argue were never motivated by politics.
“In light of the unprecedented nature of this investigation, if you intend to go forward with this in any way, we insist that you engage with us so that any finding by the Office of Special Counsel is fully informed by the record,” they wrote.
