() The Office of the Special Counsel has launched an investigation into former Special Counsel for the Department of Justice Jack Smith’s potential violation of the Hatch Act.
The probe centers on whether Smith’s actions during his investigation into former President Donald Trump may have crossed the line into prohibited political activity.
What’s the Hatch Act?
The Hatch Act is a federal law enacted in 1939 to limit the partisan political activities of most federal employees and some state and local government workers. It was created to draw a clear line between an employee’s partisan political interests and their official responsibilities to the government.
Political activity is defined as “any activity directed toward the success or failure of a partisan candidate, political party, or partisan political group,” according to the Department of the Interior.
The law is aimed at protecting “government workers from political coercion and to prevent elected officials from exploiting their positions for electoral gain,” according to researcher Donald A. Watt.
Federal employees fall into two categories under the law: “less restricted” and “further restricted.”
Most executive branch employees are less restricted and may engage in “partisan political management or partisan political campaigns,” according to the Office of the Special Counsel. Further restricted employees, like those working in intelligence and enforcement, are subject to stricter limitations, even while off the clock.
What’s prohibited?
The law prohibits covered employees from engaging in a variety of partisan activities. According to the OSC’s Guide to the Hatch Act for Federal Employees, some prohibited activities include:
- Being a candidate for nomination or election to public office in a partisan election.
- Using his or her official authority or influence to interfere with or affect the result of an election.
- Knowingly soliciting or discouraging the participation in any political activity of anyone who has business before their employing office.
- Soliciting, accepting, or receiving a donation or contribution for a partisan political party, candidate for partisan political office, or partisan political group.
- Engaging in political activity while the employee is on duty, in any federal room or building, while wearing a uniform or official insignia, or using any federally owned or leased vehicle.
Why is Smith accused of violating the law?
Trump and his allies have continuously accused Smith and his team of prosecuting Trump to interfere with his 2024 reelection campaign.
Smith was appointed by Biden Attorney General Merrick Garland to lead criminal investigations into President Donald Trump’s handling of classified documents and efforts to overturn the results of the 2020 election.
The investigation into Smith follows recent comments on social media from Sen. Tom Cotton, who claimed Smith’s legal actions were “a tool for the Biden and Harris campaigns,” calling them “very likely illegal campaign activity from a public office.”
So far, it is unclear what makes Smith’s actions politically motivated or how they may technically violate the Hatch Act.
“To all who know me well, the claim from Mr. Trump that my decisions as a prosecutor were influenced or directed by the Biden administration or other political actors is, in a word, laughable,” Smith wrote in a final report on the investigation in January. Smith resigned from his position shortly after.
What’s the punishment?
Violators of the Hatch Act could face “removal from federal service, reduction in grade, debarment from federal service for a period not to exceed 5 years, suspension, letter of reprimand, or a civil penalty not to exceed $1000,” according to the Guide to the Hatch Act for Federal Employees.
Smith is no longer a federal employee, and it is unclear what consequences he would face if found in violation of the law.
Recent violations of the law
Although the president and vice president are exempt from the Hatch Act, their staff and administration officials are not.
During Trump’s first term, the OSC found that several officials violated the law, including former adviser Kellyanne Conway, who was found to have committed over 50 violations while attacking political opponents and supporting Trump’s reelection campaign on social media.
During former President Joe Biden’s recent term, the OSC found United States Secretary of the Navy Carlos Del Toro violated the Hatch Act after advocating for Biden and against Trump in the lead-up to the 2024 election.
