Special Counsel Jack Smith Under Investigation for Alleged Political Bias in Trump Cases

The Office of Special Counsel has opened an investigation into former Department of Justice special counsel Jack Smith following allegations that his prosecutions of Donald Trump were politically motivated, the agency confirmed on August 2.

The investigation stems from a complaint filed by Republican Senator Tom Cotton, who claimed Smith’s efforts to expedite legal proceedings against the former president violated the Hatch Act, a federal law prohibiting government employees from engaging in partisan political activity while on duty.

Cotton specifically highlighted a 165-page brief Smith filed on September 26, 2024—just weeks before the presidential election—that revealed new details about Trump’s alleged attempts to overturn the 2020 election results. In a Fox News interview, Cotton claimed Smith “acknowledged” in his final report that “he was driven, in no small part, by trying to reach a verdict before the election.”

Smith has vigorously denied these accusations. In his January 7 final report to then-Attorney General Merrick Garland, Smith wrote that his office “sought to move the case forward expeditiously” but “for two central reasons unrelated to the election.” He cited the Speedy Trial Act and the gravity of the charges involving “the peaceful transfer of power” as justifications for his timeline.

“My Office had one north star: to follow the facts and law wherever they led. Nothing more and nothing less,” Smith wrote in the report.

Smith was appointed in November 2022 by Garland to investigate Trump on two fronts: potential interference with the transfer of power following the 2020 election, and the handling of classified documents found at Mar-a-Lago after Trump left office. Smith secured grand jury indictments in both cases in mid-2023, but neither reached trial.

After Trump won the 2024 presidential election, Smith filed motions to dismiss both cases, citing constitutional barriers to prosecuting a sitting president. Smith resigned from his position in January, days before Trump took office. Trump subsequently fired DOJ prosecutors and support staff who had worked with Smith.

The current investigation centers on whether Smith violated the Hatch Act, which prohibits federal employees from using their “official authority or influence for the purpose of interfering with or affecting the result of an election.” Penalties can include removal from federal service, suspension, or civil fines—though Smith’s resignation raises questions about what consequences he might face if violations are found.

Cotton also alleged that Smith’s September court filing violated the Justice Department’s “60-day rule,” an unwritten but longstanding practice discouraging legal actions against candidates within two months of an election. The rule is not codified law but has been referenced in DOJ inspector general reports as a general practice guiding department decisions.

Legal experts are divided on the merits of the case. Jack Goldsmith, a Harvard Law professor and former assistant attorney general under George W. Bush, criticized Smith’s timing in a New York Times op-ed. However, other legal scholars argue Smith’s actions were appropriate given that the cases were already charged before the election period.

“Nothing in Senator Cotton’s allegations supports that Jack Smith or his team used official authority to interfere with an election,” said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection and a former acting assistant attorney general. “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.”

McCord described the OSC investigation as “performatory” since Smith has already resigned and many of his team members have been fired by the Trump administration.

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

Beyond the OSC investigation, Attorney General Pam Bondi has created a “Weaponization Working Group” tasked with examining Smith’s actions, including the $50 million spent on investigations targeting Trump and the FBI search of Mar-a-Lago in 2022.