Attorneys for former special counsel Jack Smith have forcefully pushed back against a new government watchdog investigation into his high-profile prosecutions of President Donald Trump, calling the probe "imaginary and unfounded" and warning that it risks undermining the rule of law. The dispute, which has now spilled into public view, pits Smith’s legal team against the Office of Special Counsel (OSC)—a federal watchdog agency that is entirely separate from the special counsel role Smith once held at the Justice Department.
On August 26, 2025, Smith’s attorneys, Lanny Breuer and Peter Koski of Covington and Burling, sent a sharply worded letter to acting OSC chief Jamieson Greer. The letter, obtained by ABC News and The Associated Press, marks Smith’s first public response to the ethics probe, which was initiated after Republican Senator Tom Cotton of Arkansas accused Smith of violating the Hatch Act. The Hatch Act is a federal law that bars certain public officials from engaging in political activity while performing their official duties.
Senator Cotton’s complaint, filed earlier in the summer, alleged that Smith had deliberately sought to influence the 2024 presidential election by fast-tracking criminal cases against Trump—one for unlawfully retaining classified materials at Mar-a-Lago, the other for conspiring to overturn the 2020 election results. Cotton argued that Smith’s actions, including a request for the Supreme Court to intervene before lower courts ruled, amounted to improper political interference in violation of the Hatch Act.
But Smith’s lawyers were unequivocal in their rebuttal. "The predicate for this investigation is imaginary and unfounded," they wrote in the letter to Greer, as reported by The New York Times. They insisted that Smith had been "fiercely committed to making prosecutorial decisions based solely on the evidence," following "applicable Department of Justice guidelines and the Principles of Federal Prosecution," and that he "did not let the pending election influence his investigative or prosecutorial decision-making."
The attorneys further emphasized that both cases against Trump were brought in 2023, more than a year before the 2024 election, and were dropped after Trump’s reelection victory in November 2024. The reason? Longstanding Justice Department policy prohibits prosecuting a sitting president. As Smith’s legal team put it, "Mr. Smith’s actions as Special Counsel were consistent with the decisions of a prosecutor who has devoted his career to following the facts and the law, without fear or favor and without regard for the political consequences, not because of them."
In their letter, Smith’s attorneys also highlighted the unusual nature of the OSC’s involvement. Traditionally, the OSC investigates alleged violations of the Hatch Act by federal employees, but it rarely, if ever, scrutinizes the conduct of federal prosecutors regarding their courtroom decisions. "We are aware of no court decision, prior Office of Special Counsel finding, or other authority interpreting the Hatch Act to prohibit prosecutors from investigating allegations of criminal conduct committed by former public officials or candidates for public office, or prosecuting those cases when the facts and law so dictate," the letter stated, according to ABC News.
They warned that applying the Hatch Act in this unprecedented way could "risk interfering with the Department of Justice’s ability to investigate and prosecute public officials or candidates for public office." The letter called on the OSC to engage with Smith’s legal team before releasing any findings, arguing that "any finding by the Office of Special Counsel is fully informed by the record."
Despite the public announcement of the investigation, Smith and his lawyers noted that the OSC had not yet contacted them for cooperation or input. "Neither Mr. Smith nor his lawyers had received any inquiries from the Office of Special Counsel," reported The New York Times. Smith’s attorneys said they welcomed the opportunity to engage and were "confident that as you become familiar with the facts and the record, you will conclude that there is no basis to find a violation of the Hatch Act and that these allegations are wholly without merit."
Outside legal experts have also weighed in. Richard W. Painter, a law professor at the University of Minnesota and former chief ethics lawyer for President George W. Bush, told The New York Times that the argument for a Hatch Act investigation "made little sense." Painter explained, "If Smith had made public statements shortly before the election about the filings, we would have an issue that would need to be addressed. Or if he’d written Congress, it would need to be addressed. I see no evidence that Jack Smith did anything of the kind. He simply filed pleadings with the court, and the pleadings were accepted by the courts."
Indeed, the federal courts that presided over Smith’s prosecutions of Trump rejected claims that Smith’s conduct was improper. Smith’s lawyers noted this in their letter, stating, "the courts presiding over the resulting prosecutions have already rejected the spurious allegations that the manner in which Mr. Smith prosecuted these cases was somehow improper."
The political context surrounding the investigation is fraught. Since Trump’s return to the White House, his administration has reportedly taken steps to punish perceived enemies, including firing staff who worked for Smith and targeting Smith’s law firm with an executive memorandum aimed at stripping it of government business. According to The New York Times, many of those dismissed have sued, though their cases are moving slowly through the courts. The administration has also demoted or reassigned a wide swath of senior Justice Department officials, raising concerns about the politicization of federal law enforcement.
Smith’s attorneys argue that the OSC investigation is not only meritless but also dangerous. "This investigation is premised on a partisan complaint that suggests the ordinary operation of the criminal justice system should be disrupted by the whims of a political contest," they wrote. "But the notion that justice should yield to politics is antithetical to the rule of law."
As the legal and political battles continue, Smith’s team remains adamant that their client’s actions were above reproach. "A fair review of the facts and law," they concluded, "will compel the inescapable conclusion that the prosecutions brought by Mr. Smith were handled in an entirely lawful and appropriate manner."
With the Office of Special Counsel yet to contact Smith or his legal representatives, and with both the legal community and the courts having so far found little merit in the allegations, the investigation appears to be on uncertain ground. For now, Smith’s lawyers are holding firm, demanding transparency and a full airing of the facts before any conclusions are drawn—insisting that, in the end, the record will speak for itself.
