Former special counsel Jack Smith is finally facing a federal probe over his conduct while prosecuting President Donald Trump, though its impact may be limited.
Republican Arkansas Sen. Tom Cotton confirmed Monday that the Office of Special Counsel (OSC), an independent federal watchdog agency, launched an ethics investigation into Smith.
OSC’s investigation focuses on whether Smith violated the Hatch Act, which prohibits federal employees from engaging in some political activities. Since he is no longer a federal employee, the penalties Smith could face are limited. (RELATED: DOJ Fires 20 Employees Who Worked With Jack Smith On Trump Prosecutions)
“But he can still be found in violation of the law,” Hans von Spakovsky, senior legal fellow at the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, told the Daily Caller News Foundation. “In that case, he could be barred from further federal service for a maximum of five years or have a civil fine imposed on him. While the statute says the maximum fine is $1,000, under the applicable federal regulation, 5 CFR 1201.126(a), this amount is adjusted for inflation and is currently at $1,365.”
If Smith is found in violation of the Hatch Act, it could be grounds for a bar complaint that affects his ability to practice law, von Spakovsky said.
The OSC did not respond to requests for comment. Smith could not be reached.
Cotton originally urged Acting Special Counsel Jamieson Greer to begin the investigation July 30, alleging Smith’s actions had “no rationale except for an attempt to affect the 2024 election results.”
Smith indicted Trump in the classified documents probe in June 2023. Soon after, he indicted Trump again in August 2023 on four felony counts, claiming Trump attempted to subvert the 2020 election.
Smith repeatedly tried to fast-track a trial, initially proposing a Jan. 2, 2024 start date. When appeals threatened to upend a March 2024 trial date, Smith urged the Supreme Court to intervene rather than letting the process play out in the lower courts.
The Supreme Court’s decision not to accelerate the appeal, which resulted in a ruling on presidential immunity in July 2024, guaranteed there would be no trial before the election. Smith still pressed forward by filing a superseding indictment that attempted to remove allegations protected by presidential immunity. (RELATED: Judge Chutkan Says It Would Be ‘Election Interference’ If She Didn’t Release Jack Smith’s Evidence Against Trump)
In the weeks before the election, Smith filed a massive evidence brief, sidestepping typical procedures that allow the defense to file a motion first. His oversized 165-page brief, which included parts of witness statements, required special permission from the judge to file.
“Jack Smith’s legal actions were nothing more than a tool for the Biden and Harris campaigns,” Cotton wrote July 30 on X. “This isn’t just unethical, it is very likely illegal campaign activity from a public office.”
Smith was appointed by former Attorney General Merrick Garland in November 2022 and resigned in January before Trump took office. Judge Aileen Cannon, who oversaw the classified documents case, tossed the indictment after finding Smith’s appointment unconstitutional.
Justice Clarence Thomas also questioned whether Smith’s appointment was constitutional in a concurring opinion.
Both the classified documents case and 2020 election case ended when Trump won the presidency. In Smith’s final report on the 2020 election case, he maintained he could have secured a conviction if Trump had not been elected.
The probe is “not a welcome development” for Smith, even though it isn’t a criminal investigation, CNN senior legal analyst Elie Honig said Monday.
“So at this point, this is simply an ethics investigation [and] a conflict of interest investigation against Jack Smith,” he said on CNN. “On the other hand, we don’t know where it could go. And the Office of Special Counsel could always draft a referral and a recommendation over to DOJ.”
During his February confirmation hearing, Deputy Attorney General Todd Blanche, who was Trump’s defense attorney in the Smith cases, told Senate Judiciary Chairman Chuck Grassley that Smith’s team did not give them some records relating to the origins of the case.
“Jack Smith and his merry band of DOJ partisans weaponized the justice system to put President Trump and his defense team at an unfair disadvantage,” Grassley said in a February statement. “It’s no surprise Smith didn’t play by the rules. After all, Smith’s cases against Trump were never about fairness – they were always about vengeance and aimed at destroying a political opponent.”
The DOJ has fired prosecutors who worked on Smith’s cases against Trump. Many former Biden DOJ prosecutors have found jobs at or founded their own law firms with the goal of opposing Trump.
Trump signed an order in February stripping security clearances from members of the Covington & Burling law firm that supported Smith. The firm provided Smith with $140,000 in pro bono legal services before he resigned, according to his financial disclosure form.
Trump fired the prior leader of the Office of Special Counsel Hampton Dellinger, a Biden appointee, in February. Dellinger sued to regain his job but later abandoned his legal challenge.
“No one is above the law,” Cotton wrote on X. “I encourage OSC to release as much information as possible to the public, and do it as quickly as possible.”
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