US Hatch Act – Former Trump Prosecutor under scanner.

The United States Hatch Act, which was instituted in 1939, to Prevent Pernicious Political Activities, is a United States federal law that prohibits civil service employees in the executive branch of the federal government, except the president and vice president, from engaging in some forms of political activity.

The Office of Special Counsel has launched an investigation into former special counsel Jack Smith, who led criminal probes into President Donald Trump’s handling of classified documents and alleged efforts to subvert the 2020 election. The investigation into potential Hatch Act violations comes as Trump and his allies have sought retribution against his political enemies and those who brought investigations against him.

The Hatch Act limits certain political activities of government workers. It is supposed to stop the federal government from affecting elections or going about its activities in a partisan manner. According to the OSC’s explanation of the rule, it applies to federal employees as well as state and local employees who work with federally funded programs.

While the Office of Special Counsel — which is distinct from the special counsels, like Smith, who are appointed to oversee politically sensitive Justice Department investigations — is an independent agency created by Congress. It is currently helmed by a Trump appointee in an acting capacity after the president fired the previous head of the office, who was appointed by President Joe Biden for a five year term. The office handles allegations of whistleblower retaliation and Hatch Act investigations, according to its website.

In 2021, a report found that 13 administration officials from Trump’s first term violated the Hatch Act, including former adviser Kellyanne Conway, whom the Office of Special Counsel had previously recommended be removed from her job.

On the other side, during Joe Biden’s regime, his press secretary Karine Jean-Pierre had also received a warning letter in 2023 for violating the Hatch Act by using the term “mega MAGA” from the briefing room podium. The very rule is a workplace guideline, and violating it is not a crime. Responses can vary significantly after employees violate the rule, from a slap on the wrist to loss of a job.

Jack Smith who no longer works for the federal government after his resignation from the Justice Department earlier this year — months after he formally dropped the classified documents and election subversion cases following Trump’s victory in the 2024 election. Smith’s two-year investigation into Trump was historic, marking the first time a former occupant of the White House faced federal criminal charges.

Trump and his allies rallied against Smith, attacking his probes as a weaponisation of the federal government. Trump had vowed to fire Smith once he retook the office, shattering previous norms around special counsel investigations.

The Office of Special Counsel investigation comes after Trump ally Senator Tom Cotton claimed earlier this week that “Smith used his DOJ role to influence the election” in favor of Biden’s and Vice President Kamala Harris’ campaigns, pointing to Smith filing a brief within 60 days of Election Day — which could violate a separate Justice Department rule that goes beyond the Hatch Act.

Richard Painter, the top ethics lawyer in the George W. Bush administration, told Media Persons that he has “never seen a prosecutor found to violate the Hatch Act for pleading with a court. If Jack Smith was making public announcements close to the election and putting up press releases, that is something he’d have to be extremely careful about”, said Painter, now a law professor at the University of Minnesota. “But this was a case that’d been pending ever since the summer of 2023, and for him to continue the case with the filings with the courts that he filed, I don’t think that is a violation of the Hatch Act”.

It is unclear what exactly the Office of Special Counsel is investigating as a possible violation of the Hatch Act.

Painter also cast doubt on the independence of the agency under the Trump administration. Earlier this year, Trump fired Hampton Dellinger, a Biden appointee, and picked US Trade Representative Jamieson Greer to serve as interim head of the office. Trump’s nominee for the position, Paul Ingrassia, awaits Senate confirmation. “A political appointee is going to do what the president wants. So, you know, it’s not really functioning as an independent agency”, Painter told Media.

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