The Significance of the Hatch Act Investigation of Jack Smith
It is without merit as a legal case—but it is instructive in other ways.
At the urging of Senator Tom Cotton, the U.S. Office of Special Counsel (OSC), a federal investigative and prosecutorial agency with specialized jurisdiction, has begun an investigation into former Special Counsel Jack Smith for an alleged violation of the Hatch Act. (Note that, even though they share similar names, the Office of Special Counsel is a different Office than the one that Smith headed at the Department of Justice.) The Hatch Act is designed to restrict activities by government employees in support of or opposition to political parties or candidates, or partisan political groups. Cotton contends that Smith was a “political actor masquerading as a public official” who used his prosecutions of Donald Trump to harm Trump’s candidacy for re-election. I am unaware of any expert or other commentary that finds legal merit in this application of the Hatch Act, and I am unable to detect any substantive basis in the Act for this investigation. But it is nonetheless notable as the most recent exercise in weaponization of the law—and as an example of good government rules, adopted with the best of intentions, that prove especially vulnerable to bad-faith political manipulation.
The Act’s purpose is to prevent partisan patronage practices from enabling a party to turn the federal government into a political machine financed with taxpayer dollars. The law sets out the activities permitted and not permitted to different categories of government employees. Most may take an active part in campaigns, such as volunteering for candidates and attending political fundraising or other events, but only when off duty and not in government space. More liberal allowance is provided for White House staff and Senate-confirmed officials who work outside normal business hours and may, if the government is reimbursed for any associated costs, conduct activities such as campaign-related meetings when on duty and in official space. There is a “further restricted” category of officials in specific agencies, such as intelligence, national security, and law enforcement agencies, who may not engage in campaign activities permitted to other government employees.
By statute an independent agency (but see below), the OSC investigates and prosecutes violations before the Merit Systems Protection Board, which determines violations and penalties ranging from a fine to removal from office. However, the president has the last word on enforcement actions involving Cabinet officials and White House staff.
To my knowledge, this is a first-ever attempt to apply the Hatch Act to the conduct of a criminal prosecution. None of Smith’s decisions, even if subject to criticisms of his prosecutorial judgment, fall outside the zone of actions that a prosecutor may take. Cotton argues, however, that these actions were motivated by partisanship and, while his legal case is somewhat unclear, he seems to be alleging a violation of the Hatch Act rule barring the use of “official authority or influence for the purpose of interfering with or affecting the result of an election.” He cites, as examples, Smith’s attempt to expedite the January 6 case toward a resolution prior to the election and his filing lengthy briefs weeks before voters went to the polls that were “breathlessly covered by the press in a way to damage Trump.” Cotton rests his charge on what he infers that Smith intended with these actions—his motives.
It is striking (if not wholly surprising) that the administration is taking up this groundless charge when Trump has shown open contempt for the Hatch Act. Trump 1.0 government officials committed an exceptional series of Hatch Act violations in support of his re-election. The president and members of his senior staff routinely disregarded the OSC’s attempt to enforce the law and its appeals for heightened compliance. Violations found by the OSC during Trump 1.0 assumed a form fairly typical of Hatch Act enforcement: senior administration officials engaging in public partisan advocacy in the course of their official duties. The most prominent of these cases involved the OSC’s finding that former Counselor to the President Kellyanne Conway “repeatedly” violated the rule, with full awareness that she was doing so. Consequently, the OSC recommended to the president that Conway be removed from her position. Trump did not respond. She stayed in place and somewhat famously replied “blah, blah, blah” when asked to comment on the OSC’s findings. The president also declined to act on recommendations to take action against other staff violations, as in the case of Assistant to the President Peter Navarro, and penalty assessments by the OSC went ignored.
In his second term, President Trump promptly asserted more direct control over the OSC, firing its then-head Hampton Dellinger. This dismissal was consistent, of course, with Trump’s drive overall to “ensure Presidential supervision and control of the entire executive branch….including so-called independent agencies.” In the case of the OSC, Trump took the significant additional step of replacing Dellinger with U.S. Trade Representative Jamieson Greer. In sum, he assigned responsibility for the office to a Cabinet officer with wholly unrelated responsibilities, relegating the OSC leadership to a part-time position.
It is in light of this history that the unprecedented deployment of the Hatch Act against Jack Smith is more than a little ironic. This administration has decried weaponization of federal government power and organized a task force devoted to combating it. The Smith referral is a master class in weaponization. The administration is weaponizing a statute for which it has little or no use—a law which, in its 1.0 incarnation, its officials violated with impunity.
A second point of interest is the way this episode illustrates the risks of good government rules that lend themselves to weaponization and do not seem in their everyday enforcement to make much sense. The OSC pursues cases of public partisan commentary by senior officials when (1) there is little doubt that Cabinet officials and White House staff support their principal and his or her party’s candidates and (2) under the rules, these officials can express themselves freely on partisan politics in any venues so long as they and the event sponsors simply delete any reference to the title and positions that everyone in the audience well knows they hold.
The results do not clearly serve much of a good government function. In one case, during the Biden administration, the OSC found that the secretary of the Navy had violated the Act by expressing support for the re-election of President Biden on an overseas trip and in response to a question from a member of the foreign press, with no evidence a U.S. citizen was in attendance to hear it. Counsel to the official complained to the OSC that its finding was “a mechanical and inappropriate application of the rules.”
I can recall another example from my White House experience, when a lawyer in my office thought that the Act required a senior staff employee to remove from his office wall a poster from the 2008 Obama presidential campaign signed by members of his favorite rock band. The election was long past, and the staff member’s wish was not to revisit that victory or to predict the next, but to proudly display the band member signatures. My colleague was concerned that the “political” poster would intimidate office visitors, injecting a partisan note into official space.
None of this is an excuse for the Conway violations or her “blah, blah, blah” indifference to them. The rules are the rules. A president who takes an oath to faithfully execute the law fails clearly in that duty when he declines to do so because he dislikes a law (and quite likes the support for him that an employee can express by disregarding it). In an era of intense polarization and controversy over the weaponization of law in bitter political conflicts, it is a good time to reflect on rules that may prove irresistible for this purpose. The applications of this “use of official authority” rule are potentially endless. As in the Smith case, when it is supported by nothing more than pure speculation about the motives behind any official action, it invites weaponization. Even if the rule is defensible in theory, it would help to have it defined more specifically, left less open-ended, limiting to some degree the risk of abuse.
One possible reason for the administration taking up the Cotton claim is that it stands no chance of successfully prosecuting Smith under any standard theory of criminal liability. This Hatch Act maneuver is a work-around for the moment, with maybe some thought that something will come of it that can be the basis for a referral to the Department of Justice. Or the OSC will just write a report condemning Smith. It is just a way to connect the name “Jack Smith” with alleged violations of law.
These actions occur only three months after the OSC in Trump 2.0 advised that, because of unresolved jurisdictional questions about the OSC’s authority to act against officials who have left government service, “OSC will refrain from filing any new complaints against former employees.” It seems on a course to make an exception in the case of Jack Smith—or to simply investigate him, find against him, and then take no formal enforcement action because of these “jurisdictional” issues. We can’t know how it will all end, but too much hope for serious treatment of this unserious case, resolved credibly, would be misplaced.