Several weeks after Sen. Tom Cotton, R-Ark., filed an ethics complaint against former special counsel Jack Smith, broadly complaining about the way President Donald Trump was investigated and prosecuted during his 2024 campaign, Smith”s lawyers have responded that the attempt to allege violations of the Hatch Act are “unprecedented” and doomed to fail.

Recall that Cotton called for an investigation into whether Smith “unlawfully took political actions to influence the 2024 election to harm then-candidate President Donald Trump,” claiming that “many” of the then-special counsel’s “legal actions seem to have no rationale” beyond mere politics.

In a letter to the Office of Special Counsel (OSC) and its acting head Jamieson Greer, however, Covington & Burling attorneys Lanny Breuer and Peter Koski insisted that allegations of unlawful “political activity” on the part of Smith are “wholly without merit,” and offering up at least five key reasons why Cotton’s “predicate” for demanding the probe is “imaginary and unfounded.”

When litigating access to the White House tapes in the investigation of President Nixon, the Special Prosecutor filed a petition for certiorari before judgment, which bypassed the court of appeals and moved the case directly to the Supreme Court from the district court. There, the Supreme Court granted the petition for certiorari before judgment “because of the public importance of the issues presented and the need for their prompt resolution.” Mr. Smith merely followed this precedent and pursued the same appellate litigation path established by the Supreme Court 50 years earlier.

As Law&Crime has reported, the OSC states that violations of the Hatch Act can result in “removal from federal service, reduction in grade, debarment from federal service for a period not to exceed 5 years, suspension, letter of reprimand, or a civil penalty not to exceed $1,000.”

Of note, Smith is not currently in federal service, meaning that a reprimand and fine might be the most serious repercussions he’d face — if the investigation goes anywhere.