Attorney Jo-Anna Nieves joined "Forbes Newsroom" to discuss the Office of Special Counsel's investigation into former Special Counsel Jack Smith, who, during Biden’s presidency, was appointed to oversee the federal government’s investigations into Trump’s alleged attempts to overturn the 2020 election and his handing of classified documents.
00:00Hi, everybody. I'm Brittany Lewis, a breaking news reporter here at Forbes.
00:07Joining me now is attorney Joanna Nieves. Joanna, thank you so much for joining me.
00:12Hi, Brittany. Thanks so much for having me.
00:15I want to talk today about a Biden era name who has been making headlines over the past week.
00:20This feels like a blast from the past. I'm talking about former special counsel Jack Smith.
00:25During Biden's presidency, he was appointed to oversee the federal government's investigations into Trump's alleged attempts to overturn the 2020 election, as well as his handling of classified documents.
00:36Jack Smith is now being investigated himself by the Office of Special Counsel.
00:41The probe is into allegations that his, quote, legal actions were nothing more than a tool for the Biden and Harris campaigns and that his legal actions also hurt then candidate Donald Trump.
00:51So first, to start off the conversation, as an attorney, what are your thoughts on the probe?
00:57So my initial thoughts is that, wow, this comes way out of left field.
01:01It's so long ago. Jack Smith resigned back in January of 2025.
01:06The prosecutions against Trump were closed when Trump took the presidential seat.
01:12And, you know, he's no longer a federal employee.
01:16So the investigation isn't going to lead to much in terms of like some of the most severe penalties that can come out of a violation of the hack chat.
01:25So I think it really comes from this prompting by Senator Cotton into, you know, let's look into what's going on in conjunction with some of the internal investigations that are happening with the weaponization working group.
01:36And here we are, you know, we're pulling people out of the woodwork to explore their decisions they made while they were employed.
01:44Yeah, I want to take it even a step further back here.
01:47He's being accused, Jack Smith, of violating the Hatch Act.
01:51What does that even mean?
01:52Explain what the Hatch Act even is.
01:56Sure.
01:56So the Hatch Act is a federal law that really is aimed at targeting or overseeing federal employees and not politicizing their professions.
02:06So when you're a federal employee, we don't expect that you are campaigning for a particular candidate and, you know, doing these actions within federal facilities and that you are not tweeting political content from your work account.
02:22So it's really aimed at ensuring that government resources aren't being used and government authority aren't being used to promote particular political beliefs.
02:32And Senator Tom Cotton, he is the head of the Senate Intelligence Committee.
02:38He accuses Jack Smith of violating this.
02:41He's saying that it's very likely a legal campaign activity from a public office.
02:46That's what he says Jack Smith's legal actions were.
02:49He also called this unprecedented interference in the 2024 election.
02:53And I want to read some of his accusations here.
02:56And if you could break down the legalese for me.
02:58So he accused Smith of trying to rush the jury selection and ultimately the trial of Trump's election subversion case.
03:05And that Smith didn't give a good reason as to why it should be fast tracked in that way.
03:09Cotton also said Smith, quote, filed for a procedurally irregular brief with no defense motion pending on September 24th, 2024, which may violate DOJ's 60 day rule before Election Day.
03:22This was breathlessly covered by the press in a way to damage Trump.
03:25He then also said that these, quote, actions were not standard, necessary or justified.
03:30They were the actions of a political actor masquerading as a public official.
03:34So how strong, if at all, that is that evidence that he did violate the Hatch Act?
03:42Here's the thing, I think Jack Smith is really going to take the position that even though he hasn't said anything at this point, hey, this is my profession.
03:49It wasn't political. We are he was up against the timeline.
03:53If Trump was elected into office, the prosecutions go away.
03:58So there is this inherent need to rush the process.
04:02And I think what Cotton is saying is like, you went too fast.
04:06You kind of like made it seem like this aggression you were taking was because you had a political vendetta and, you know, underlying political leanings that were were dictating the way you move.
04:18However, we have to keep in mind that there are legal tools that are available, you know, to lawyers, briefings that are able to be submitted, strategic moves that they make.
04:30And if we if we need to rush a filing, there are maneuvers that can be put into place.
04:37And I think that that Jack Smith position is going to be I was lawyering and I was being an aggressive lawyer.
04:42But it doesn't mean that I was campaigning for a particular side.
04:46And if we can remember both cases that Smith oversaw did result in federal charges against President Trump, but they were ultimately dropped once President Trump won reelection again in twenty twenty four.
04:59So I am curious how serious you think as an attorney this investigation is in the eyes of the law or is it more of a political stunt?
05:06Because as you noted from the top, I mean, Smith did resign before President Trump came back into office.
05:12He resigned at the end of Biden's presidency.
05:14He's not in office anymore. If you violate the Hatch Act, the punishment is you could be removed from office.
05:19You could pay a fine of no more than a thousand dollars.
05:23So we could let's say he is found guilty of violating the Hatch Act.
05:28He could be charged a fine of no more than a thousand dollars.
05:30But I mean, that's not really a steep punishment.
05:33That sounds more like a minor slap on the wrist.
05:36What what do you make of that?
05:37One hundred percent agree, Brittany is more so a name and shame thing.
05:44This is really about like reputational damage, the stress of being in the public eye and under public scrutiny.
05:50I mean, I mean, the most severe penalty that you mentioned removal from your position is just not even available to him because he's no longer there.
05:59So we do have that he could get a reprimand.
06:02He could be prevented from serving in public office for about five years.
06:05But unless this investigation and probe leads to some real criminal conduct that's discovered, you know, falsifying documents or misusing funds, obstruction of justice, it's highly unlikely that there's anything that's going to result in a basis for the OSC to make a referral over to DOJ for criminal prosecution and more severe penalties.
06:27I think this is really about dragging somebody's name through the dirt.
06:30And to that point, you're essentially saying Cotton has a pretty thin case here.
06:35Jack Smith might not have too much to worry about.
06:38It's more reputational damage.
06:40It's more the fact Jack Smith is now in the news.
06:42He's making headlines for facing a probe, facing an investigation.
06:46You know, can he counter in any way legally saying, hey, you have such a thin case here.
06:51The only thing you're trying to do is reputational damage.
06:54Is that a legal maneuver he could do?
06:56I tell everybody, if you want to take somebody to court, there's always a possibility, right?
07:04You know, when you think about defamation of character and the defense to defamation is, is this the truth?
07:10And is this somebody that's in the public?
07:12You know, there are defenses and requirements that need to be met to see whether or not he could actually sue for that.
07:19But you see, the president just turned around and sued the Wall Street Journal.
07:23So, I mean, there's always a counterpunch that can be made in certain situations.
07:29I think that if Jack Smith wanted to take it that far, he potentially could.
07:34Would it be worth his time, effort and resources?
07:37Probably not.
07:39And so what do you see coming out of this, if anything?
07:41What as an attorney are you looking out for next?
07:44I think what I see coming out of this is obviously the decision from the probe, OSC making the determination as to whether or not there was a violation of the Hatch Act and then probably leading to a much ado about nothing type of position from there.
08:02And I'm curious overall, what do you think of Republicans as well as President Trump and the Trump administration and how they are using the law?
08:11You brought up that President Trump is suing the Wall Street Journal.
08:16There's also a probe into Jack Smith.
08:18I mean, Republicans have long said that Democrats are weaponizing the government.
08:23They weaponize law.
08:24They bring up frivolous charges.
08:27What do you make of these legal actions?
08:28I think it does support that narrative, that broader narrative, that it is kind of like the Democrats' way of weaponizing the justice system against conservatives.
08:43I think that is what their goal is, to support that narrative.
08:47But I do think it's almost a monkey see, monkey do type of situation where if we're complaining about misuse of resources and weaponizing the system, here we are kind of probing into something that's not going to lead to much.
09:05Well, Joanna, I appreciate you breaking down this legalese for us and for me especially because you made it super clear.
09:14And as we have other lawsuits and other stories involving the law, I hope you can come back on and give us your insight and perspective as an attorney.
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