Special Counsel Jack Smith is facing growing scrutiny from the administration of the president he once sought to convict twice over — even as President Trump has, via executive order, sought to limit Mr. Smith’s ability to mount a defense. 

Mr. Smith, who has not been heard from since he resigned days before Mr. Trump’s inauguration, faces an investigation from the United States Office of Special Counsel for alleged violations of the Hatch Act, which prohibits certain political activities by government officials. The agency itself cannot bring criminal charges, but it can seek civil penalties. 

The request to probe Mr. Smith — who before being hired by Attorney General Garland was prosecuting war crimes at the Hague  — came from Senator Cotton. The lawmaker is an ally of Mr. Trump who accuses Mr. Smith of “unprecedented interference in the 2024 election” for the timing of his two prosecutions of Mr. Trump — for election interference and the storage of secret documents at Mar-a-Lago.

Mr. Cotton tells Fox News that Mr. Smith was “racing against the clock” to get his cases to trial before November’s election. The special counsel repeatedly pushed for expedited consideration of his cases, and chafed when Judge Aileen Cannon, an appointee of Mr. Trump, in South Florida threw up roadblocks on the path to opening statements. She eventually ruled that Mr. Garland’s appointment of Mr. Smith was unlawful, and disqualified him and dismissed the charges. 

Mr. Smith’s assessment — repeated multiple times in court documents — was that there was a “compelling” interest in trying Mr. Trump with dispatch. Yet after the Supreme Court, in Trump v. Casa, determined that official presidential acts are presumptively immune from prosecution, Mr. Smith sought a new election interference indictment against Mr. Trump in August, just months before November’s presidential election.

Mr. Cotton argues that Mr. Smith “used his DOJ role to influence the election” in favor of President Biden and Vice President Harris’s campaigns. The Department of Justice has a “60 Day Rule,” distinct from the Hatch Act, which seeks to limit the interference of prosecutions with elections. Documents in Mr. Smith’s January 6 case were released by Judge Tanya Chutkan, an appointee of President Obama, less than 60 days before the election. 

The Hatch Act investigation is not the only process under way that is reappraising Mr. Smith. A “Weaponization Working Group” was convened in February by Attorney General Bondi to probe “Special Counsel Jack Smith and his staff, who spent more than $50 million targeting President Trump, and the prosecutors and law enforcement personnel who participated in the unprecedented raid on President Trump’s home.” Unlike the OSC probe, this working group could lead to a grand jury investigation or even a special counsel to criminally investigate the erstwhile special counsel. 

Shortly after he returned to power, Mr. Trump put his Sharpie to an executive order suspending “any active security clearances held by Peter Koski and all members, partners, and employees of Covington & Burling LLP who assisted former Special Counsel Jack Smith during his time as Special Counsel.” 

Mr. Koski, a partner at Covington, is Mr. Smith’s personal attorney and is representing the longtime government employee pro bono. That order remains in effect, as Covington — unlike some other Big Law firms that were penalized by Mr. Trump — has not challenged it in court. Those challenges have, at least so far, been successful. 

Covington, long a landing spot for Democratic rainmakers, declares in a statement that it “serves as defense counsel to Jack Smith in his personal, individual capacity. We look forward to defending Mr. Smith’s interests and appreciate the trust he has placed in us to do so.” Documents that Mr. Smith submitted toward the end of his tenure disclose that the firm provided some $140,000 in free legal services for Mr. Smith.

The DOJ has also moved to eradicate all traces of Mr. Smith at Main Justice. While the special counsel’s top deputy, Jay Bratt, also resigned before Mr. Trump took office, other employees who were seconded to Mr. Smith’s team have been fired since Ms. Bondi took over as America’s chief law enforcement official. 

If the legal push against Mr. Smith escalates, Mr. Koski’s lack of a security clearance could prove an obstacle to defending his client. That in turn could lead to a constitutional challenge to the executive order on the basis of the Sixth Amendment, which ordains: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defense.” Courts have ruled that the right extends to defendants’ ability to secure the counsel of their choice.

Mr. Koski could bring in a co-counsel from a separate firm who could gain access to classified material — though any attorney that affiliates with Mr. Smith could face the White House’s ire.