JACK SMITH UNDER INVESTIGATION—THE PROS AND CONS

JACK SMITH UNDER INVESTIGATION—THE PROS AND CONS

 

INTRODUCTION

Donald Trump was elected to a second term of office in part due to a large portion of the electorate rejecting the weaponization of the law, which has assumed the nefarious term “lawfare.” Jack Smith secured indictments in federal District Courts in the District of Columbia and Florida using a strained application of statutory law. Trump obstructed nothing in January 2020 and deprived no voter of his counted vote. The Pelosi-engineered January 6th impeachment failed. Trump received classified documents as the Chief Executive, and his determination to review them and keep them in his possession after his term ended was at best a civil dispute between his team and the political hack occupying the position of “Archivist.” For any other President, this would be treated accordingly, but for Trump it was “espionage.” The absurdity of these charges was mercifully ended through a combination of the Trump v. United States immunity ruling by the Supreme Court and the summer 2024 ruling by United States District Judge Aileen Cannon that Jack Smith’s appointment as Special Counsel by Attorney General Merrick Garland, Biden’s lapdog, violated the Appointments Clause. The result was a finding that Smith was not an “inferior officer,” and the result was a dismissal of the indictment. Trump’s full acquittal was at the ballot box and a massive Electoral College victory. This was a referendum on “lawfare,” and the hope is that weaponized prosecutions will end as an unfortunate stain on our Republic. This goes for all political parties and power grabs, as we wish to distance ourselves from those countries that use these tactics as a matter of course. Reasonable people could easily view the late timing of these indictments as a clear exercise in election interference. It failed. Political accountability is the ultimate cleanser for misbehavior, and the Framers as well as the Supreme Court have recognized this from the ratification to the present. Trump won handily.

 

SENATOR TOM COTTON (R-AR) LAST WEEK ASKED THE OFFICE OF SPECIAL COUNSEL—AN INDEPENDENT GOVERNMENT AGENCY—TO INVESTIGATE JACK SMITH FOR HATCH ACT VIOLATIONS

The Office of Special Counsel (OSC) states that the purpose of the Hatch Act is as follows:

 

The Hatch Act, a federal law passed in 1939, limits certain political activities of federal employees, as well as some state, D.C., and local government employees who work in connection with federally funded programs. The law’s purposes are to ensure that federal programs are administered in a nonpartisan fashion, to protect federal employees from political coercion in the workplace, and to ensure that federal employees are advanced based on merit and not based on political affiliation

 

The OSC has issued, in one case, an advisory opinion that distilled the Act’s purposes as follows:

 

“The Hatch Act (5 U.S.C. §§ 7321-7326) governs the political activity of federal executive branch employees. The Act permits most covered employees to actively participate in partisan political management and partisan political campaigns. Covered employees, however, are prohibited from: using their official authority or influence for the purpose of interfering with or affecting the result of an election; knowingly soliciting, accepting, or receiving political contributions from any person; being candidates for public office in partisan elections; and knowingly soliciting or discouraging the political activity of any individual with business before their agency. 5 U.S.C. § 7323(a)(1)–(4). The Hatch Act also prohibits covered employees from engaging in political activity while on duty, in any room or building occupied in the discharge of official duties by an individual employed or holding office in the Government of the United States or any agency or instrumentality thereof, while wearing a uniform or official insignia identifying the office or position of the employee, or using any vehicle owned or leased by the Government of the United States or any agency or instrumentality thereof. 5 U.S.C. § 7324.”

 

By its statutory terms the Act also applies to “individuals” who violate its terms. My review of the OSC does not at first blush disclose a precedent wherein a Special Counsel who obtains an indictment is within the realm of prohibited persons and activity. It may well be an investigation of first impression. Senator Cotton, in his request letter seeking such an investigation, distills those milestones in Smith’s mischief that are compelling in determining if such actions were for the overriding purpose of interfering in the 2024 primaries and election, and he outlines them as follows:

 

• “After filing the indictment against President Trump on August 10, 2023, Smith demanded the trial start January 2, 2024, with jury selection beginning as early as December 11, 2023. Defendants in these types of cases typically have more than two years to prepare for trial, but President Trump’s defense team had fewer than six months to review 13 million pages of evidence and thousands of hours of video footage provided by prosecutors. Notably, jury selection was to begin just two weeks before the Iowa caucuses.
• On December 11, 2023, after President Trump filed his defense with the District of Columbia District Court, Smith pressed for a trial before the election by moving for an expedited review by the appeals court. On the same day, however, Smith further escalated this push and filed a petition with the Supreme Court to bypass the district court. Smith skirted the normal appellate process but failed to articulate a legitimate reason the court should grant this abnormal request.
• Following the Supreme Court’s decision recognizing presidential immunity, Smith’s prosecution team filed an initial brief on September 5, 2024, although there was no Defense motion pending. The judge granted Smith permission to file the brief on September 26, 2024, but pointed out this was “procedurally irregular.” This timeline is highly unusual considering complex litigation matters normally take place over several months, rather than a mere three weeks. This action also appears to violate the Justice Department’s 60-day rule, which prohibits timing any action for the purpose of affecting any election or giving advantage or disadvantage to a candidate, within 60 days of the election.
• Smith’s brief on Trump’s immunity from prosecution was 165 pages, which required special permission to exceed the normal maximum page limit by four times. In fact, Smith also incorporated grand jury testimony typically kept secret at this point in other proceedings. This action appears to be a deliberate and underhanded effort to disclose unsubstantiated and extensive allegations timed to maximize electoral impact.”

 

THE PROS AND CONS

Smith’s indictments were challenged on several grounds, and at least in the District of Columbia prosecution, Trump’s motions were overruled, and with respect to the immunity issue also saw a denial of this motion in the partisan DC Court of Appeals. Trump’s team persevered on all fronts and was vindicated in the Supreme Court and in the Florida District Court. However, the Court’s affirmation of the presumptive merits of these “prosecutions” in whole and in part might confer some de facto immunity on Smith and insulate him from a finding of a violation. In addition, the Hatch Act is a paper tiger; the penalties are soft and not enforceable on Smith, who resigned his position to deny Trump the pleasure of firing him. The penalties are indeed ethereal:

 

“§ 7326. Penalties: An employee or individual who violates section 7323 or 7324 shall be subject to removal, reduction in grade, debarment from Federal employment for a period not to exceed 5 years, suspension, reprimand, or an assessment of a civil penalty not to exceed $1,000.”

 

This is a civil matter and would perhaps result in the executive version of a Declaratory Judgement with no real sanction. Certainly, Smith has some version of prosecutorial immunity as the result of the return of indictments, findings of probable cause, and the upholding of the charges in both courts. Even in Judge Cannon’s court, the ultimate merits were not decided, and the indictment was dismissed on the Appointments Clause ground. A referral to the Justice Department is unlikely in the absence of evidence of criminality on the part of Smith and his team in the withholding of evidence or fraud on the court. Good politics on the part of Senator Cotton, but the result might not be rewarding.

The positive side of such a referral would be to deter such purely political prosecutions in the future and perhaps set the stage for a challenge to Smith’s law licensure. The bad faith application of the law for an improper purpose is a serious ethical violation, and the use of the courts to interfere with the electoral process is disbarment territory given the right facts. Do not hold your breath. I spoke loudly about the injustice suffered by John Eastman, who saw his California law license revoked over legal advice under circumstances much less offensive to due process than Smith’s attempts to do what the FBI and Hillary failed to do to Trump. An abomination. Most Bar officials are politically aligned such that they are not inclined to do anything other than throw Smith a bouquet followed by an “atta boy.”

 

CONCLUSION

We have seen politics infect the good-faith interpretation of gathered official intelligence, and it’s making a mockery of real science and medicine, as we saw during the Covid troubles. We have no collective confidence in our structural institutions. The legacy media is on life support for its force multiplication of these falsehoods from Russiagate to the pandemic. Journalists were rewarded for doubling down on blatant lies and cover-ups. Does this initiative really advance the bar, or will we see another case of an overpromise with little result at the back end? The electorate who twice elevated Trump to the White House already know what Smith is and what his mission was. Revoke his clearances and debar him from any public appointment, and he will still get a big job somewhere in the multitude of Democratic sweatshops known as law firms in DC and elsewhere. Trump won. Smith failed, and Biden’s efforts to jail Trump are on the trash heap of political history.

 

Mike Imprevento
August 4th, 2025