Trump's Jack Smith Probe Isn't Just Hypocritical. It Could Backfire Spectacularly.

The Office of Special Counsel has opened an investigation into former special counsel Jack Smith, alleging he may have broken a law that bars federal workers from engaging in political activities — a probe that feels politically motivated, considering Donald Trump and his allies have historically scoffed at ethics laws and that a dozen people in Trump’s first administration were found to have violated such laws.   

The Office of Special Counsel, led by former right-wing podcaster and 2020 election denier Paul Ingrassia, confirmed on Saturday that it was looking into allegations that Smith violated the Hatch Act, a 1939 law that says federal workers can’t engage in partisan activities when operating in their official capacity.

Smith, who was appointed by Attorney General Merrick Garland in 2022 to investigate Trump for allegedly attempting to subvert the 2020 election and unlawfully retaining classified documents, resigned from his post in January.

Sen. Tom Cotton (R-Ark.), a longtime Trump ally, demanded an investigation into Smith last week, claiming that the former special counsel had “used his DOJ role to influence the [2024] election.” He further alleged that Smith had “pushed for an out-of-the-ordinary, rushed trial” over Trump’s alleged attempts to subvert the 2020 election, defraud the public and intimidate voters by inspiring his supporters to violently attack the U.S. Capitol on Jan. 6, 2021, as Congress met to certify the election. 

Cotton claimed Smith’s actions were only “meant to help” Democratic nominee Kamala Harris win the 2024 race. 

“There is no other reason,” Cotton wrote on social media.

But Smith’s handling of the Jan. 6 case has been well-documented, and not just in his massive final report — which Trump’s lawyers tried to block from going public. There are also thousands of pages of court records that Smith’s team and Trump’s attorneys both filed over the course of many years. 

What is also well-documented is Trump’s pattern of retaliation against his perceived enemies, and Smith is clearly on his enemies list. Also well documented? How the Trump administration has historically treated the Hatch Act.

Richard Painter, a White House ethics lawyer during President George W. Bush’s administration, described the abuses succinctly in a November 2021 tweet.

“An entire administration at the most senior levels devoted to illegally using federal office to promote the president’s political campaign,” he wrote. “Disgusting.”

The probe into whether Smith blurred the lines between politics and his official position comes as Trump continues toblur (or obliterate) the linesbetween his business ventures and the presidency. And oversight conducted by anyone who isn’t already baked into Trump’s inner circle, despite their experience or expertise, is unwelcome: In the first few weeks of his second administration, Trump fired 18 inspectors general and watchdogs meant to oversee corruption. 

Trump also fired OSC special counselHampton Dellinger, who was tasked with enforcing the Hatch Act, in February, and made several changes that weakened the law. 

Weeks after Dellinger was fired — less than halfway into what was supposed to be a five-year term — the Office of Special Counsel announced it was rescinding a policy he had put into place last year, which forbade federal employees from wearing or displaying the campaign merchandise of a candidate actively running for office. That included buttons, hats and signs in the workplace.

This attempt to keep personal politics out of the federal workplace put “too great a burden on First Amendment interests,” OSC said in a memo issued in April. 

The memo also reopened a loophole that Dellinger had closed on how and when certain federal workers — specifically, political appointees who don’t face Senate confirmation but are handpicked by the president, like White House staffers — are disciplined for Hatch Act violations. 

They are now referred directly to the White House to face consequences, rather than the Merit Systems Protection Board, the semi-independent body historically tasked with protecting federal workers from politically motivated firings. (Trump fired Cathy Harris, whom former President Joe Biden appointed as chair of the board, without cause, prompting her to sue. The Supreme Court refused to reinstate her while her litigation against the administration plays out.)

Consequences are not something Trump appeared to care about when it came to his staffers violating the Hatch Act during his first administration.Even after the OSC under then-special counsel Henry Kerner — a Trump appointee — recommended Kellyanne Conway be fired for ethics violations, Trump kept her on.

“It looks to me like they’re trying to take away her right of free speech, and that’s just not fair. It really sounds to me like a free speech thing. It doesn’t sound fair,” Trump said on “Fox & Friends” in 2019. 

The OSC made one other key change this spring: Employees who have left the federal workforce before a formal Hatch Act complaint is made against them can no longer be disciplined. 

It’s unclear how — or even if — the Trump administration can actually penalize Smith, who resigned months ago. Penalties for Hatch Act violations 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,” according to the Justice Department. 

The Office of Special Counsel did not reply to HuffPost’s multiple requests for comment. 

The targeting of Smith may be an attempt to distract from the still-mounting scandal over Trump’s relationship with sex offender Jeffrey Epstein, the devastating costs of Trump’s tariffs, and the wide-ranging criticism the administration has received for its blatant disdain for due process, immigrants, trans people, womenand children, and the poor. 

Beyond attempting to rewrite the history of Jan. 6 or targeting Smith solely for the sake of punishing him, what Trump stands to gain by dragging Smith through the public square isn’t clear. OSC can subpoena documents, conduct interviews and essentially hold a trial of its own. 

As former federal prosecutor Andrew Weismann recently pointed out, relitigating Smith’s investigation could backfire spectacularly. 

“Trump spent years trying to avoid — and largely being successful at avoiding — any of these cases going to trial. And if he’s going to have a trial here, that’s going to be a forum for Jack Smith and people to put on the evidence that he has tried for so long to avoid,” Weismann said on MSNBC.

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