Inquiry into former Trump prosecutor Jack Smith is based on ‘imaginary premise,’ lawyers say

WASHINGTON (AP) — A watchdog investigation into former special counsel Jack Smith over his prosecutions of President Donald Trump is based on an “imaginary and unfounded” premise, Smith’s lawyers wrote in a letter obtained by The Associated Press on Tuesday.

The letter marks the first response by Smith and his legal team to news that the Office of Special Counsel, an independent watchdog office, had launched an investigation into whether Smith engaged in improper political activity through his criminal inquiries into Trump.

The attorneys told Jamieson Greer, the acting head of the office, that his investigation into Smith was “wholly without merit.”

“Mr. Smith’s actions as Special Counsel were consistent with the decisions of a prosecutor who has devoted his career to following the facts and the law, without fear or favor and without regard for the political consequences, not because of them,” wrote Smith’s lawyers, Lanny Breuer and Peter Koski.

The Office of Special Counsel, which is totally distinct from the Justice Department special counsel position that Smith held for more than two years starting in November 2022, confirmed the investigation following a request from Republican Sen. Tom Cotton of Arkansas, who asked it to examine Smith’s activities for potential violations of the Hatch Act, a federal law that bans certain public officials from engaging in political activity.

Cotton had alleged that Smith sought to interfere in the 2024 presidential election through his prosecutions and sought to effectively fast-track the cases toward resolution, including by asking the Supreme Court to weigh in on a key legal question before a lower court had a chance to review the issue.

But Smith’s lawyers say that argument is contradicted by the facts and note that no court ruling or other authority prohibits prosecutors from investigating allegations of criminal conducts against candidates for office. Politics, they say, played no part in the decision to bring the cases.

“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,” Smith’s lawyers wrote.

“The predicate for this investigation,” they added, “is imaginary and unfounded.”

Smith, who was appointed special counsel under the Biden administration, brought two cases against Trump, one accusing him of conspiring to overturn the results of the 2020 presidential election and the other of hoarding classified documents at his Mar-a-Lago estate in Florida. Both were brought in 2023, well over a year before the 2024 presidential election, and indictments in the two cases cited what Smith and his team described as clear violations of well-established federal law.

Both cases were abandoned by Smith after Trump’s November win, with the prosecutor citing longstanding Justice Department policy prohibiting the indictment of a sitting president.