The U.S. Office of Special Counsel opened an administrative investigation in August 2025 into former Justice Department special counsel Jack Smith over possible violations of the Hatch Act, the federal law that restricts certain partisan political activity by government employees.
The Office of Special Counsel, commonly known as the OSC, confirmed the investigation after Republican Sen. Tom Cotton of Arkansas asked the agency to examine whether actions taken by Smith while prosecuting Donald Trump were improperly intended to affect the 2024 presidential election. Opening an investigation did not establish that Smith had violated the law.
What the Office of Special Counsel is investigating
Cotton sent a July 30, 2025 letter to the OSC alleging that Smith had used investigative and prosecutorial decisions to influence the election against Trump. Among other issues, Cotton criticized the timing of court filings in the federal election-interference case.
Those assertions were allegations made by Cotton, not findings by the OSC. The investigation was opened to determine whether Smith's conduct while serving as a federal employee violated the Hatch Act.
The Hatch Act, enacted in 1939, limits certain political activities by federal employees. According to the OSC, the law is intended in part to ensure that federal programs are administered in a nonpartisan manner and to protect federal workers from political coercion.
A Hatch Act investigation is administrative rather than a criminal prosecution. The OSC can investigate alleged violations and, when warranted, seek disciplinary action through the Merit Systems Protection Board. It does not function as a federal criminal prosecutor.
Two different offices called “special counselâ€
The investigation can be confusing because the agency examining Smith and the office Smith once led both use the term “special counsel,†but they are separate institutions.
The U.S. Office of Special Counsel is an independent federal agency responsible for matters including Hatch Act enforcement, whistleblower disclosures and prohibited personnel practices. Smith, by contrast, served as a Justice Department special counsel appointed to conduct specific criminal investigations and prosecutions.
Then-Attorney General Merrick Garland appointed Smith on November 18, 2022. His mandate covered investigations involving efforts to interfere with the lawful transfer of presidential power following the 2020 election and Trump's handling of classified documents and other presidential records, including possible obstruction.
Smith's federal cases against Trump
Smith's office brought two federal criminal cases against Trump. One concerned Trump's alleged efforts to overturn the 2020 election result and obstruct the transfer of power. The other involved allegations that Trump unlawfully retained classified national-defense documents after leaving the White House and obstructed efforts to recover them.
Trump pleaded not guilty and repeatedly denied wrongdoing, arguing that the prosecutions were politically motivated. Smith's office maintained that its decisions were based on the facts and federal law.
After Trump won the November 2024 presidential election, Smith moved to end the federal cases against him because of the Justice Department's longstanding position that a sitting president cannot be criminally prosecuted. The dismissals therefore did not amount to either a conviction or an acquittal on the merits of the allegations.
The Justice Department's archived Special Counsel Jack Smith page contains the appointment order, indictments, major filings and the publicly released volume of Smith's final report concerning the 2020-election case.
Smith resigned from the Justice Department in January 2025 after completing his work.
What Cotton alleged
In seeking the Hatch Act investigation, Cotton accused Smith of taking actions that he believed were designed to damage Trump's electoral prospects. His letter focused in part on the pace and timing of litigation during the 2024 campaign and the filing of a lengthy brief concerning presidential immunity.
Cotton characterized those actions as possible political activity conducted through public office. That characterization remained disputed and was the subject of the OSC inquiry rather than an established conclusion.
The distinction matters because prosecutors routinely make strategic decisions about scheduling, motions and public filings as part of litigation. A Hatch Act case would require the OSC to assess whether particular conduct crossed the legal boundary from official government work into prohibited partisan political activity.
What powers the OSC has
The OSC states that it is authorized to investigate alleged Hatch Act violations. Depending on its findings and the employee's status, the agency can issue warnings or pursue disciplinary proceedings before the Merit Systems Protection Board.
According to the OSC's Hatch Act enforcement guidance, possible disciplinary consequences in appropriate cases can arise through administrative proceedings. A Hatch Act inquiry itself is not a criminal charge and does not establish misconduct.
Smith had already left federal service when the investigation was announced. That raised a separate question about the OSC's authority to pursue disciplinary cases against former employees.
Later development on former employees
In April 2025, before the Smith investigation became public, the OSC said it would temporarily pause referrals of Hatch Act cases against former federal employees to the Merit Systems Protection Board while the jurisdictional issue was being resolved.
Later, in December 2025, the agency announced that it would resume filing Hatch Act complaints involving former employees after a Merit Systems Protection Board administrative law judge concluded that the board had jurisdiction over alleged violations committed while a person was still in federal service.
That later policy development clarified the enforcement framework that could apply to former officials such as Smith, but it did not itself determine whether Smith had violated the Hatch Act.
The investigation did not amount to a finding of wrongdoing
At the time the OSC inquiry was disclosed in August 2025, the central confirmed fact was that the agency had opened an investigation. Cotton's accusations remained allegations, and an investigation alone did not establish that Smith had acted unlawfully or for a partisan purpose.
The episode also illustrated the importance of distinguishing between the Justice Department special counsel system, which can conduct federal criminal investigations and prosecutions, and the independent Office of Special Counsel, whose Hatch Act work is administrative.
Any ultimate determination would depend on the OSC's findings and the applicable administrative process rather than on the political claims made by either Smith's critics or defenders.
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