Sen. Cotton says ex-Trump prosecutor violated partisan prohibition for government employees

Senate Intelligence Committee Chair Tom Cotton, R-Ark., said Thursday he believes former special counsel Jack Smith violated the Hatch Act by rushing the prosecution of President Donald Trump before the 2024 election.

On July 29, Cotton asked U.S. Trade Representative Jamieson Greer, who is the acting head of the Office of Special Counsel and a BYU alumnus, to investigate whether Smith’s actions were meant to influence the outcome of the presidential race.

A day later, the Office of Special Counsel, which oversees compliance with civil service laws, launched the first formal probe into whether the prosecutor responsible for Trump’s Jan. 6 and classified documents cases was politically motivated.

The focus of the investigation is whether Smith, as former special counsel for the U.S. Department of Justice, violated the Hatch Act, an 85-year-old law that prohibits federal employees from engaging in political activities while on duty.

In his letter to Greer, Cotton alleged Smith had expedited legal motions in nontraditional ways to reach a verdict before the election, including by speeding up trial dates, bypassing district courts and updating briefs within 60 days of the election.

“It seems to me, as it did at the time, that was driven more by a political rationale, not a legal rationale, which violates the spirit and the letter of the Hatch Act,” Cotton said in an interview with the Deseret News on Thursday.

Over the past week, Cotton has claimed on X and Fox News that Smith’s prosecutorial decisions were “nothing more than a tool for the Biden and Harris campaigns” and “very likely illegal campaign activity from a public office.”

Other decisions that Cotton said “seemed to have no legal rationale” include Smith’s emergency appeal to the Supreme Court, requests for accelerated briefing schedules and disclosure of sealed materials, like grand jury testimony.

Who is Jack Smith?

Smith was appointed by then-U.S. Attorney General Merrick Garland in November 2022 to lead the legal reviews of Trump’s efforts to overturn the results of the 2020 election and his handling of classified documents.

Smith reviewed an extensive number of testimonies and documents, leading to a final report in January concluding that Trump had participated in an “unprecedented criminal effort” to remain in office after losing the 2020 election.

Speaking with the Deseret News, Cotton said he thinks the Office of Special Counsel could find Smith guilty of violating the Hatch Act, but added “he’ll have a chance to account for himself, and maybe he can induce an explanation.”

But there is no evidence that Smith’s efforts to investigate Trump was the same as “a public employee using their position to advance campaign interests,” according to Gregg Nunziata, the executive director of Society for the Rule of Law.

“This complaint is astonishingly flimsy,” Nunziata told the Deseret News. “Whatever one thinks about the merits of Jack Smith’s case, or his legal strategies, there’s no question that he was pursuing a duly authorized government investigation into serious allegations of wrongdoing.”

In many ways Smith was put in a difficult situation because every move by the government in its prosecution of a former president running for reelection could be interpreted as impacting his political future, Nunziata said.

Some of Smith’s prosecutorial decisions appear unusual only because the cases were totally unprecedented, according to Nunziata, who pointed out that several factors of the trial timelines actually worked out in Trump’s favor.

Instead of ending a cycle of lawfare and overreach, Nunziata said the Office of Special Counsel’s investigation appears to be just one more instance of using political institutions to punish perceived enemies of the president.

“I think that we’re seeing the weaponization of government against political opponents by the Trump administration in ways we’ve never seen in our history,” Nunziata said.

Did Smith violate the Hatch Act?

This view from Nunziata, who formerly worked as general counsel and domestic policy adviser to Trump’s current Secretary of State, Marco Rubio, is shared by legal experts from both Republican and Democratic backgrounds.

Richard Painter, the former chief White House ethics lawyer under former President George W. Bush, told Politico he has never heard of a Hatch Act investigation based on court filings, and that Smith’s actions did not merit an investigation because he did not make public statements about the 2024 election.

Bob Bauer, the former White House counsel to President Barack Obama, writing for his Substack, Executive Functions, said he believed this was the first attempt to apply the Hatch Act to a criminal prosecution and that none of Smith’s legal actions fell outside the options available to a prosecutor.

Bauer pointed out that Trump has refused to enforce the Hatch Act multiple times for several former officials, including former counselor to the president Kellyanne Conway and assistant to the president Peter Navarro.

The investigation also appears to contradict new administration policy. On April 25, Trump’s Office of Special Counsel said it would “refrain from filing any new complaints against former employees” who had already left office.

The investigation by the Hatch Act Unit of the Office of Special Counsel could potentially become the basis for a referral to the Department of Justice, Bauer said. But more likely it is a way to produce a critical report of Smith.

Even if Smith was found to have violated the Hatch Act, the only recourse under the law would be to fine him $1,000, or to suspend, reprimand or fire him, which is not applicable because Smith resigned in January.

Cotton receives Hatch award

On Thursday, Cotton was recognized at the annual Orrin G. Hatch Foundation Gala as the recipient of the Titan of Public Service Award for his commitment to public service and respectful dialogue.

“What I learned from Orrin Hatch is you’re inevitably going to have disagreements, sometimes those are even in your own party,” Cotton told the Deseret News.

“When we disagree, we disagree strongly and fervently, but we try to be civil and respectful of each other, because we know we might be working together the next day.”

Attending the event were three members of Utah’s federal delegation. In an interview with the Deseret News, Rep. Mike Kennedy, of Utah’s 3rd Congressional District, said he supported Cotton’s effort to investigate Smith.

“The way that I saw that process unfold, it did appear that there were some political motivations behind that,” Kennedy said.

But, Kennedy said, the truth will be better understood by the Office of Special Counsel providing “more clear information about circumstances.”