Attorneys representing former special counsel Jack Smith pushed back Tuesday against reports of a new watchdog investigation into his prosecutions of President Donald Trump, calling the basis for the probe baseless and politically driven.
“The predicate for this investigation is imaginary and unfounded,” wrote Covington and Burling attorneys Lanny Breuer and Peter Koski in a letter to acting Office of Special Counsel Jamieson Greer, obtained by ABC News.
The Office of Special Counsel — a separate watchdog agency distinct from the Justice Department’s special counsel role that Smith once held — announced last month it was investigating Smith after receiving a referral from Republican Sen. Tom Cotton.
Cotton alleged that Smith’s prosecutions of Trump — including charges over classified documents and a conspiracy to overturn the 2020 election — were designed to influence Trump’s 2024 presidential campaign in violation of the Hatch Act.
Smith’s attorneys rejected that claim, writing: “A review of the record and procedural history demonstrates the opposite — Mr. Smith was fiercely committed to making prosecutorial decisions based solely on the evidence, he steadfastly followed applicable Department of Justice guidelines and the Principles of Federal Prosecution, and he did not let the pending election influence his investigative or prosecutorial decision-making.”
Both prosecutions were dropped after Trump’s reelection, citing the Justice Department’s long-standing policy barring charges against a sitting president.
Smith’s attorneys also pointed out that since Greer’s announcement of the ethics investigation, he has not reached out to Smith directly for cooperation.
They further argued that the OSC typically has no authority over federal prosecutors. “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 attorneys wrote.
They warned that applying such a broad interpretation of the Hatch Act “risks interfering with the Department of Justice’s ability to investigate and prosecute public officials or candidates for public office.”
The New York Times first reported on the letter.
A spokesperson for the Office of Special Counsel did not immediately respond to ABC News’ request for comment.
This marks the first public response from Smith’s attorneys since he moved to dismiss the Trump prosecutions following the 2024 election. It also comes as the White House continues urging investigations into what it calls Trump’s political opponents.
The Justice Department has also named Smith among the officials under review by its “Weaponization Working Group,” though it remains unclear if that includes a criminal probe.
Smith’s attorneys concluded their letter by urging Greer to allow their input before releasing any findings. “In light of the unprecedented nature of this investigation, if you intend to go forward with this in any way, we insist that you engage with us so that any finding by the Office of Special Counsel is fully informed by the record,” they wrote.
