CNN senior legal analyst Elie Honig said on Monday that the investigation into whether former Special Counsel Jack Smith engaged in illegal activity could likely not end well for him.
The Office of the Special Counsel (OSC) opened an investigation on Saturday into whether Smith violated the Hatch Act, which restricts federal employees from engaging in some forms of political activities, while spearheading two criminal investigations against President Donald Trump during his 2024 candidacy. Honig said on “CNN News Central” that while the OSC is not criminally investigating Smith, there is the possibility that they may send a criminal referral against Smith to the Department of Justice (DOJ).
“The most important thing to know here is this is not, at this point, a criminal investigation of Jack Smith,” Honig said. “It’s not a welcome development for him, to be sure, but it’s not a criminal investigation … There’s a completely separate agency outside of DOJ called the Office of the Special Counsel and what they do is they investigate ethical issues. You mentioned the Hatch Act. The Hatch Act is the law that basically says that federal employees cannot engage in political activity relating to their jobs. So at this point, this is simply an ethics investigation [and] a conflict of interest investigation against Jack Smith. On the other hand, we don’t know where it could go. And the Office of Special Counsel could always draft a referral and a recommendation over to DOJ. That’s the down the line, but for now, it’s focused on ethics, not potential crimes.”
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Smith charged Trump in June 2023 over his alleged mishandling of classified documents, including 31 counts of his alleged violation of the Espionage Act. He also handed down a separate indictment in August 2023, which charged Trump with four felony counts related to his alleged attempts to overturn the 2020 election results.
The OSC’s investigation into Smith follows Republican Arkansas Sen. Tom Cotton’s referral asking the agency to investigate Smith’s activities during the 2024 election. The senator argued that Smith pushed for an “out-of-the-ordinary, rushed trial” for Trump and that the special counsel tried to “bypass the normal process” by asking the U.S. Supreme Court to fast-track their arguments over an immunity dispute, which the justices rejected.
“Special Counsel Smith pushed for an out-of-the-ordinary, rushed trial for President Trump, with jury selection to begin just two weeks before the Iowa caucuses. No other case of this magnitude and complexity would come to trial this quickly,” Cotton wrote on X. “Special Counsel Smith tried to bypass the normal process and go right to the Supreme Court, but gave no reason why his abnormal request should be granted. The real reason was to get a quick ruling to damage Trump before the election—a partisan, unlawful action.”
Judge Aileen Cannon dismissed the classified documents case in July 2024, arguing that Smith’s appointment violated the Appointments Clause of the United States Constitution. Smith dismissed the election case after Trump won the 2024 election, complying with the DOJ’s long-standing precedent of not criminally charging sitting presidents.
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