Q&A on the Investigation into Trump Prosecutor Jack Smith – FactCheck.org

The Office of Special Counsel confirmed on Aug. 2 that it has opened an investigation into former Department of Justice special counsel Jack Smith and whether his attempted prosecutions of Donald Trump were politically motivated and ran afoul of the law.

Republican Sen. Tom Cotton, whose complaint triggered the OSC investigation, alleged Smith’s efforts to expedite the cases were politically motivated. Cotton highlighted a lengthy brief Smith filed a month and a half before the presidential election that revealed new details about Trump’s alleged efforts to illegally overturn the 2020 election.

On Fox News, Cotton said Smith “acknowledged” in his final report that “he was driven, in no small part, by trying to reach a verdict before the election.” In that report, Smith said that he was motivated to move the cases forward expeditiously, but denied that he had any political motivation.

Some experts are also dubious that Smith ran afoul of the law in his prosecution of Trump. The OSC is investigating potential violations of the Hatch Act, a civil statute, that could result in dismissal from the federal workforce. Given that Smith has already resigned, and many of his staff have since been fired by the Trump administration, one legal expert told us the OSC investigation “seems performatory.”

Trump has long called Smith “corrupt” and claimed — without providing any evidence — that Smith coordinated with the Biden administration to “weaponize” the Department of Justice against his reelection.

In November 2022, Smith was appointed by then Attorney General Merrick Garland as a special counsel for two criminal investigations of Trump: whether the former president and others had unlawfully interfered with the transfer of power following the 2020 presidential election, and another regarding Trump’s handling of classified documents found at his Mar-a-Lago club and residence after he was no longer president.

Smith obtained a grand jury indictment against Trump in the classified documents case in June 2023, and then Trump was indicted in the election case in August 2023. But neither came to trial. After Trump won the presidential election, Smith filed motions to dismiss both cases against Trump, saying the Constitution does not allow the criminal prosecution of a sitting president. Smith resigned from his position in January, days prior to Trump taking office. Trump subsequently fired DOJ prosecutors and support staff who worked with Smith on his prosecutions.

Here, we’ll answer some of the questions about what the investigation into Smith is about.

What is the Office of Special Counsel?
What prompted OSC to open an investigation?
What is the Hatch Act?
What is the 60-day rule?
What did Cotton allege?
Has Smith responded?
What do experts say about the merits of the case?
Is the OSC the only agency investigating Smith?

What is the Office of Special Counsel?

The Office of Special Counsel is an independent federal investigative agency that, among other things, enforces the Hatch Act, a congressional statute that prohibits partisan political activity by government workers while on the job. The OSC also protects and acts as a reporting venue for federal whistleblowers.

Although it shares a similar name, the OSC has nothing to do with the Department of Justice’s appointments of special counsels, such as Smith.

The OSC is currently headed by an acting special counsel, Jamieson Greer, who also serves as Trump’s United States trade representative. Trump nominated conservative former podcast host Paul Ingrassia to head the watchdog agency, but his Senate confirmation hearing was recently postponed due to controversial statements he has made in the past.

What prompted OSC to open an investigation?

On July 30, Cotton sent a letter to Greer calling on him to investigate whether Smith “unlawfully took political actions to influence the 2024 election to harm then-candidate President Donald Trump.”

Cotton claimed many of Smith’s legal actions — including that he “expedited trial proceedings and deliberately published information” — seemed to “have no rationale except for an attempt to affect the 2024 election results — actions that would violate federal law.”

In a footnote specifying the federal law, Cotton’s letter cited a part of the Hatch Act. Cotton also alleged that a brief filed by Smith on Sept. 26, 2024, violated the Justice Department’s “60-day rule” discouraging legal actions against a candidate within two months of the election.

What is the Hatch Act?

The Hatch Act was passed by Congress in 1939 and was updated in 2012. It generally prohibits federal employees — but not the president or vice president — from participating in partisan political activity while on duty or in the workplace. Specifically, the section cited by Cotton states that federal employees cannot use their “official authority or influence for the purpose of interfering with or affecting the result of an election.”

During Trump’s first term in office, numerous administration officials were accused of and/or cited for violations of the Hatch Act. Although most of OSC’s recommendations resulted in warning letters, in 2019, the OSC cited “numerous violations” of the Hatch Act by then White House counselor Kellyanne Conway and called on Trump “to remove Ms. Conway from her federal position immediately.” Trump declined. (Those violations included numerous incidents of Conway attacking Democratic presidential candidates or endorsing Trump’s reelection in TV interviews and in X posts while working in her official capacity as a White House employee.)

The penalties for violation of the Hatch Act are civil in nature, and according to OSC, can include “removal from federal service, reduction in grade, debarment from federal employment for a period not to exceed 5 years, suspension, reprimand, or a civil penalty not to exceed $1,000.”

Given that Smith resigned from the Justice Department in January, just days before Trump’s inauguration, it’s unclear what, if any, consequences Smith would face if he were determined by the OSC to have violated the Hatch Act.

What is the 60-day rule?

The so-called 60-day rule is not a law, but rather a “longstanding” Department of Justice “practice of delaying overt investigative steps or disclosures that could impact an election,” according to a review of DOJ policies by its Office of Inspector General in 2016.

“The 60-Day Rule is not written or described in any Department policy or regulation,” the report states. “Nevertheless, high-ranking Department and FBI officials acknowleged the existence of a general practice that informs Department decisions.”

The Department of Justice Manual states more generally: “Federal prosecutors and agents may never select the timing of any action, including investigative steps, criminal charges, or statements, for the purpose of affecting any election, or for the purpose of giving an advantage or disadvantage to any candidate or political party.”

Since 2008, attorneys general have issued memoranda providing guidance on “Election Year Sensitivies.” One such memorandum from then Attorney General William Barr in 2020 stated that no investigation of a declared candidate for president may be initiated in an election year. (Smith’s investigations began in late 2022 and resulted in indictments in the summer of 2023, before the 2024 election year.)

What did Cotton allege?

In his letter to the OSC, Cotton cited several examples of what he warned could potentially be violations of the Hatch Act, including Smith’s push, after securing Trump’s indictment on Aug. 10, 2023, to hold a trial on Jan. 2, 2024, when “these types of cases typically have more than two years to prepare for trial.”

In addition, Cotton criticized Smith’s decision to file a brief on Sept. 26, 2024, responding to the Supreme Court’s decision on presidential immunity. In what was described by the media as a “bombshell” and “blockbuster court filing,” Smith’s brief provided details and new evidence to support the case that Trump and others tried to illegally overturn the 2020 election.

According to Cotton, the timing of the brief was “highly unusual” in how quickly it was filed considering the complexity of the litigation. “This action also appears to violate the Justice Department’s 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.”

The 165-page brief, Cotton said, appeared to be “a deliberate and underhanded effort to disclose unsubstantiated and extensive allegations timed to maximize electoral impact.”

In a Fox News interview on Aug. 4, Cotton said, “Anybody with two eyes to see could say that he was simply racing the clock to try to get these cases to a jury in Washington, D.C., to convict Donald Trump and imprison him before the American people could elect him to go back to the White House.”

Has Smith responded?

We reached out to Smith’s attorney for comment but did not get a response. However, Smith commented extensively on the issue in his final report on Jan. 7 to then Attorney General Garland, dedicating nearly a dozen pages to defending his prosecutorial actions in an election year.

In his recent Fox News interview, Cotton claimed that Smith “acknowledged” in that final report “that he was driven, in no small part, by trying to reach a verdict before the election. I think that’s the definition of improper political influence in prosecutorial decisions.”

But that’s not what Smith wrote in his report.

Smith acknowledged that his office “sought to move the case forward expeditiously” but “for two central reasons unrelated to the election.” The first was that “the Speedy Trial Act mandates expeditious resolution of criminal cases, and it does so not only for the benefit of the accused, but in the best interest of the public.” Second, Smith wrote, “those fundamental interests were heightened in this case, which raised matters of utmost gravity, urgency, and national concern, charging the former President with conspiring to thwart the peaceful transfer of power through lies that undermined the democratic process and ultimately fueled a violent attack on the United States Capitol. These criminal charges warranted prompt and fair disposition, and that is what the Office sought to achieve.”

In his report, Smith wrote, “My Office also adhered at all times to the Department’s policy against interfering in elections. … I can assure you that neither l nor the prosecutors on my team would have tolerated or taken part in any action by our Office for partisan political purposes. Throughout my service as Special Counsel, seeking to influence the election one way or the other, or seeking to interfere in its outcome, played no role in our work. My Office had one north star: to follow the facts and law wherever they led. Nothing more and nothing less.”

Smith wrote that he intended to make a decision on indictments by the summer of 2023 “long before the election” — which he did.

“The Office had no interest in affecting the presidential election, and it complied fully with the letter and spirit of the Department’s policy regarding election year sensitivities,” Smith wrote.

The Justice Department policy on election year sensitivities does not apply after an indictment has been reached, he argued.

“Whether it is during an election year or any other time, the duty of prosecutors after indictment is to litigate their cases fully and zealously, consistent with the Constitution, United States Code, Federal Rules of Criminal Procedure, rules of professional responsibility, and dictates of the calendar set forth by the court,” Smith wrote.

Although Trump argued the trial ought to be delayed until after the election, the courts disagreed.

“Delaying the trial date until after the election, as Mr. Trump proposes, would be counterproductive, create perverse incentives, and unreasonably burden the judicial process,” according to a three-judge federal appeals court panel in 2023.

However, the trial didn’t happen before the election because of delays caused by more legal challenges.

What do experts say about the merits of the case?

In an Oct. 9 op-ed for the New York Times that ran under the headline, “Jack Smith Owes Us an Explanation,” Jack Goldsmith, a law professor at Harvard University who was an assistant attorney general in the George W. Bush administration, criticized the timing of the release of Smith’s 165-page brief, and argued “the Department of Justice should not have allowed the information to be disclosed so close to Election Day.”

New York University School of Law professors Andrew n, a lead prosecutor in Robert S. Mueller’s Special Counsel’s Office, and Ryan Goodman, co-editor-in-chief of Just Security, pushed back, writing in October for Just Security that the “so-called 60 day rule is inapplicable” because the case had already been charged. “There’s simply no facts to warrant the conclusion that Smith and other Justice Department officials have violated that provision,” they wrote. “Rather, they have complied with Judge Chutkan’s repeated admonition that the pretrial briefings, as she reminded the parties last month, must go ahead without being suspended or delayed by the campaign calendar.”

Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection and a visiting professor at Georgetown University Law Center, told us via email that “nothing in Senator Cotton’s allegations supports that Jack Smith or his team used official authority to interfere with an election.”

“The case was before multiple judges at the trial and appellate levels, who did not suggest any concerns with the trial date request or the post-immunity-ruling briefing,” said McCord, who was the acting assistant attorney general for national security at the Department of Justice from 2016 to 2017. “And there is a public interest in the prompt resolution of criminal cases.”

In any case, she said, the OSC’s authority “is solely civil and the remedies are disciplinary action against the federal employee and/or a modest fine. But Jack Smith resigned before the Trump administration took office and most if not all of his team has been fired” making the OSC investigation seem “performatory,” she said.

Richard Painter, a law professor at the University of Minnesota who served as the chief White House ethics lawyer in the George W. Bush administration, agreed.

“I am not aware of any federal prosecutor ever being found in violation of the Hatch Act for Court filings in a criminal case against a candidate,” Painter told us via email. “Furthermore, these were filings in an already pending criminal case against a candidate, and the Supreme Court only months before (July) had made an important substantive ruling concerning that same case (Trump v. United States). If Smith had made public statements in press releases, or had written Congress as James Comey did in 2016 about Hillary Clinton’s email, that would have been more problematic, but these were court filings with courts that had the discretion to put off the cases until after the election, which is what happened. It was dropped entirely when Trump won.”

Is the OSC the only agency investigating Smith?

In November, after Smith announced his moves to dismiss the cases against Trump, the Heritage Foundation’s Oversight Project warned on X that it was “preparing a model indictment,” saying, “Jack Smith and his team must be held accountable for their unprecedented lawfare.”

In February, Attorney General Pam Bondi created what she called the “Weaponization Working Group” tasked with, among other things, examining “Weaponization by Special Counsel Jack Smith and his staff, who spent more than $50 million targeting President Trump, and the prosecutors and law enforcement personnel who participated in the unprecedented raid on President Trump’s home.” As we have written, FBI agents who searched for classified documents held by former President Trump at Mar-a-Lago in 2022 followed standard protocol.

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